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A ‘sovereign’ Parliament hamstrung over Brexit – or taking control?https://thinkinglegally.wordpress.com/2018/12/21/a-sovereign-parliament-hamstrung-when-it-comes-to-brexit/
https://thinkinglegally.wordpress.com/2018/12/21/a-sovereign-parliament-hamstrung-when-it-comes-to-brexit/#respondFri, 21 Dec 2018 14:14:27 +0000http://thinkinglegally.wordpress.com/?p=1104Continue reading →]]>The UK Parliament is sovereign – but do those who know of and respect this constitutional principle really understand how limited Parliament’s sovereignty is? Much has been said of parliamentary sovereignty in light of Brexit: by those who wish to leave the European Union to reestablish UK parliamentary sovereignty; but also by those who feel Parliament could wrest decision-making about how the UK actually leaves from Theresa May and her flailing Government.

In fact Parliament is not sovereign in the sense that the collective will of MPs and/or Peers in the House of Lords holds sway. It is parliamentary legislation that is, in effect, sovereign. In the traditional formulation “the Crown in Parliament” is sovereign, meaning legislation having passed its three stages in the Commons, Lords and Royal Assent will be recognised by the courts. And, for the most part, it is the Government that brings legislation to Parliament, not individual MPs or Peers (though there are exceptions: see below).

One thing MPs can do is bring down the Government in a vote of no confidence. The assumption is that this leads to a General Election (under the Fixed-term Parliaments Act) – but there is also a useful traditional power for MPs to vote out the Government – and replace it without an election. This might be a handy ploy if there is enough cross-party opposition to Theresa May’s Brexit deal – though it would amount to a parliamentary coup. The implications are looked at below (subhead: Bringing down the Government).

But generally in the great debate on May’s Brexit deal, Parliament has found itself somewhat constrained – hence some of the innovative procedural schemes that have come forward thanks to Dominic Grieve and others to allow backbenchers to “take back control”.

For example, hitherto one would assume that, constitutionally, MPs certainly couldn’t meet together and decide for themselves the form of Brexit they wanted – or if they did, they would have no special powers to issue legislation to ensure it did so transpire. Yet, one of the options discussed by certain soft- and anti-Brexiters was just such a plan if Theresa May’s deal fell: give the matter over to the Liaison Committee, which normally has a minor advisory role, to draft and bring forward legislation that might command support of a majority in Parliament. The Daily Mail described this as: “tearing up the Commons rule book – giving backbench MPs the power to propose legislation instead of the Government”.

The former parliamentary counsel Sir Stephen Laws, finds any such notion, in effect turning the Liaison Committee into a Government, wholly unappealing and, indeed “horrific” (The Contest to Take Control of Brexit):

“Of course, Parliament is sovereign and can change the balance of influence in its collaboration with government if it chooses. Nevertheless, it would be contrary to the national interest and disastrous for our constitutional settlement for Parliament to take over functions that more appropriately belong to the executive, such as the initiation and coordination of policy formulation and the management of public finances. They are functions that Parliament is ill-equipped to perform effectively and for which it is incapable, as a body, of being held democratic ally accountable in the same way as a government can be.”

Note, though, that putting the “Government” in the hands of the Liaison Committee would not strictly be putting the sovereign “Parliament” in control (since the sovereign Parliament is really “the Crown in Parliament”. Instead the House of Commons would be taking control – a far more radical move, compared by many to English parliamentary history in the 1640s. And Sir Stephen’s highly monarchical answer to stymie such a revolutionary innovation is for Theresa May (who would still be Prime Minister because, constitutionally, the Monarch appoints the Prime Minister, not the Commons) to “advise” the Queen not to sign the Liaison Committee’s legislation, even assuming it passes both Houses. (*See the note below: Laws’ monarchical veto.)

He insists that in reality: “All the House can do is try to persuade the Government to initiate the required legal changes” (The Risks of the Grieve Amendment pdf). If the two Houses did put legislation to the Queen, he says “it is a sacred duty of all UK politicians not to involve the Monarch in politics”. But, if they did, this might be the point when she could exercise her … let’s call it a “backstop”. So “might not a Government in that situation think that this was precisely the last resort for which the Royal Assent process is retained?” Laws even considers that the courts might, in these circumstances, resile from their normal duty to consider parliamentary legislation sacrosanct (the fundamental principle underpinning a “sovereign Parliament”) under the “enrolled Act” rule. This says:

“all that a Court of Justice can do is to look at the Parliament Roll; if from that it should appear that a bill has passed both Houses and received the Royal Assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament, during its progress in its various stages through Parliament”. Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 Cl & F 710, 725.

Sir Stephen suggests this fundamental principle could be thrown to the four winds in the circumstances of “Parliament taking control”. Judges could inquire into how, and how legitimately, the Act in question was passed. Parliament would cease to be sovereign in these circumstances.

Extending Article 50?
On the face of it, according to the traditional reading of the British constitution, MPs could also not insist that the Article 50 process that plunges Britain out of the EU on 29 March 2019 be halted. Since that is happening thanks to primary legislation, European Union (Notification of Withdrawal) Act 2017 (passed by a sovereign parliament), it can presumably only be halted by more legislation – and, to all intents and purposes, only the Government can put that legislation before Parliament.

There is an issue here, though, about whether the Act indicated the intention of Parliament to actually leave the EU or simply gave the Prime Minister the power to start the process under Article 50(2) of the Treaty on European Union.

The Act says she “may” notify the EU of the United Kingdom’s “intention to withdraw”, but the constitutional writer Robert Craig argues here that this is not discretionary and does evince Parliament’s intention that the UK shall withdraw. But if Parliament passed a new Act saying the Prime Minister “may” notify the EU of the UK’s “intention to revoke Article 50”, would that be sufficient to ensure she actually revoked it? (Note: the European Union Withdrawal Act 2017 goes into the nuts and bolts of withdrawal when it happens, saying in Section 1: “the European Union Withdrawal Act 2017 is repealed on exit day”.

This handy thread on the legal situation regarding Article 50 suggests May could request an extension beyond 29 March from the EU – but MPs have no power to force her to do that. The suggestion has been made that she could not deny a simple vote of the House of Commons on a motion to stop the clock on the process – but in reality she probably could because such a vote has no soverign power.

There is even an argument to say that May has no power to put a delay on Article 50. Under this view, if an extension without parliamentary approval (ie if she used her prerogative powers to regulate international treaties, derived from the Crown) frustrated the intention of Parliament, it would be deemed beyond her powers (as per Laker Airways v Department of Trade 1976).

But that depends on whether one views the actual date as part of the will of Parliament. Since an extension would not actually halt the process, keeping Britain in the EU, it would not frustrate the intention of the EU Withdrawal Act, to leave the EU. The date is enshrined in the Act, but, after a compromise keeping the date off the face of the Act, so is the power to amend the date under particular circumstances using secondary legislation. Section 20(4) says:

“A Minister of the Crown may by regulations — (a) amend the definition of ‘exit day’ in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom”.

So the power of delay is there for domestic purposes and, hence, it is argued, the exercise of the prerogative for the same purpose would not frustrate Parliament.

An opposite view might be that setting the date in the EUWA was a significant expression of the will of Parliament and that S.20(4) was simply for technical purposes (as regulations generally are), not for the political purpose of finding an alternative to the Government’s Brexit deal, or inserting time for an election or for a referendum that might actually balk the will of Parliament expressed in the Act. And there is also this in Schedule 7 to the Act:

14 A statutory instrument containing regulations under section 20(4) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

This describes a particular type of secondary legislation, the affirmative procedure, that requires an actual vote in Parliament (rather than simply passing if no one objects over a period of time, usually 40 sitting days). An extension would seem to require a parliamentary vote, so perhaps a brief piece of primary legislation might be best? (This argument is suggested in passing by Robert Craig: Can the Government Use the Royal Prerogative to Extend Article 50? UK Constitutional Law Association.

@RobertCraig3 also joins this Twitter back-and-forth among legal types regarding the status of the EU Withdrawal Act. Does it express the positive will of Parliament to leave the EU? Or does it simply acknowledge and enable the political will of the Government, allowing the Government to extend the Article 50 period – or even halt it? So @JolyonMaugham tweets: “I read the Withdrawal Act as machinery to implement a decision that had already been made rather than a Parliamentary expression of that decision”. Others disagree.

Bringing down the Government
Assuming those like Sir Stephen Laws are right and there is no way of blocking the May juggernaut as it runs down the clock and forces through her deal, what can be done? Laws acknowledges one possibility: the vote of no confidence. But he sees it only in terms of the Fixed-term Parliaments Act version that would be likely to lead to an election. And, he notes

“once a vote of no confidence were passed, the scope for further action is severely limited. The Cabinet manual says that the purdah rules for elections apply after such a vote has been passed. That would stop further changes to the status quo. Thereafter if there is to be an election, Parliament is removed from the scene, and unable to act, from its dissolution for an election until, effectively, about ten days afterwards.”

It therefore seems unclear whether May could delay Brexit to fit in an election or whether she would want to. And the Commons certainly would be in no position to make her.

Change the Government?
But the alternative would be a non-FTPA vote of no confidence. Basically this would involve putting a no confidence motion that avoided the specific wording in the Act that triggers an election (“That this House has no confidence in Her Majesty’s Government”). If such a motion passed, Theresa May would have to give notice that she would stand down if a new government could be formed and a new Prime Minister found from within the Commons.

The benefit to any cross-party coalition would be that it would avoid losing the best part of a couple of months to a General Election – during which time the country would come closer to slipping out of the EU with no deal anyway. The backbenchers’ choice of Prime Minister would be more amenable to pursuing the sort of Brexit (or second referendum) that the majority of MPs wanted.

In December Jeremy Corbyn threatened a vote against May personally, but that cannot force her to resign. An amended version of a no confidence motion that includes the Government in its condemnatory wording but does not use FTPA wording could bring down the Government without triggering a General Election under the Fixed-term Parliaments Act. See: Corbyn motion may be a bigger deal).

But if the non-electoral alternative were deemed an option, Corbyn himself would have to want to present the motion in non-FTPA terms at the risk of having no leading part in any anti-May coalition government (including pro-referendum or pro-single market Tories) that emerged from the ruins. Motions of no confidence seem to be at the whim of the Leader of the Opposition – but who knows what could happen now Speaker Bercow is willing to lay fast and loose with the procedures of the House.

So the non-electoral option would seem to be the only way to suspend the Article 50 process if May won’t do it, assuming a new cross-party coalition Government would act pretty quickly to do it. On the other hand it would amount to a parliamentary coup against the May Government – and would not be wholly uncontroversial on the streets of Brexit-leaning Britain.

• For a bit more on no confidence motions see “Motions of no confidence” below.

• A recent Public Administration and Constitutional Affairs Committee report on “old-style” no confidence motions can be found here (pdf).

*A note on Sir Stephen Laws’ monarchical vetoLaws founds his notion that the Queen could veto legislation that has passed through both Houses of Parliament but without government approval on the Commons standing orders, particularly SO 48, which says:

48.Recommendation from Crown required on application relating to public money This House will receive no petition for any sum relating to public service or proceed upon any motion for a grant or charge upon the public revenue, whether payable out of the Consolidated Fund or the National Loans Fund or out of money to be provided by Parliament, or for releasing or compounding any sum of money owing to the Crown, unless recommended from the Crown.

Laws argues that any anti-Brexit legislative change, including holding off the Article 50 process and especially a referendum, would cost money so such legislation would be controllable by the Crown – actually the Government. He notes in particular that “the repeals that are to come into force under the 2018 Act on 29th March 2019 include the repeal of section 2(3) of the 1972 [European Communities] Act“. This, in effect, allowed money to be paid automatically to the EU as required – which would stop on 29 March but continue if the Article 50 process were suspended.

The financial implications of this would allow the Prime Minister to whisper in the Queen’s ear that she could veto any such Bill. In fact, no such Bill should really find its way out of the House of Commons given SO 48, never mind be put before the Queen for her signature.

• Robert Craig looks at the various backbench procedural innovations and the Royal Assent debate here: Could the PM advise the Queen to deny Royal Assent? On balance he says yes, but that the Government should face any public anger if she did, not the Queen herself.

• For those interested in constitutional arcana here is a 1999 backbench bill intended to strip the Government of prerogative powers (such as making and unmaking treaties with foreign powers and assenting to European Community legislation) unless it had parliamentary support: Parliamentary control of the Executive Bill. The sponsor of the Bill was the later-to-be Brexit Secretary, less enamoured of Parliament taking back control regarding Brexit itself (because it involves “tearing up the British constitution”).

Further background: The powers of Parliament
Here is a handy guide to the very limited traditional powers of Parliament, in particular MPs in the House of Commons (pre-Bercow, Grieve et al …):

The Commons can call its own debate, it can pass a vote of no confidence in the Government or it can (possibly) pass a piece of legislation presented by individual MPs. MPs can call debates by various procedures, outlined here. Adjournment debates, which are in the gift of the Speaker or through a ballot, are really little more than a means of getting ministers to answer questions.*

Backbench Debates may be available on application to the Commons Business Committee. The committee will also take account of e-petitions. So a debate on a second EU referendum was scheduled for 5 September 2017 following an e-petition from four million people. But it is merely a debate with an obligatory reply at the end from the relevant minister. There is no vote and it cannot change policy.

Resolutions can be debated and voted on, but have no legal effect. Governments should “respect them” as the will of elected members, according to this Commons select committee report.

Motions of no confidence
The most draconian power Parliament has is a motion passed in the Commons on the words in the Fixed Term Parliaments Act 2011 Section 2(2): “That this House has no confidence in Her Majesty’s Government.” There would have to be some planning for this, not to mention conspiracy, since if no new government can be formed within 14 days, a General Election must ensue.

Importantly, the Corbyn vote (against May personally) has been denied time in the Commons by the Government, so has to occur in Opposition time – which is limited 17 days per session for the main opposition party and three for the next biggest. A vote of no confidence in the Government should be given time by the Government because it has real implications (ie it can bring down a government).

‘Twenty days shall be allotted in each session for proceedings on opposition business, seventeen of which shall be at the disposal of the Leader of the Opposition and three of which shall be at the disposal of the leader of the second largest opposition party’ – Standing Order 14

(The fact the Government decided a single session would cover two years caused controversy in June 2017 when Labour asked for extra Opposition days pro rata. Valerie Vaz, Shadow Leader of the House, complained that the proportional reduction in Opposition days curtailed fair debate and discussion.)

Legislation
In terms of primary legislation (laws passed through both Houses of Parliament and signed into law by the Monarch), Bills are generally introduced by the Government. The powers of MPs (and Peers) to introduce Bills are limited. Private Members’ Bills are explained here. But they involve winning a ballot. The ballot for 2017-19 was held in June 2017 and several MPs have had success with their legislation. See here. (In terms of MPs seizing control of Brexit and suspending the Article 50 legislation, this option looks therefore useless.)

Parliament takes control?
The constraints on MPs explain the blizzard of procedural motions from Dominic Grieve and others as well as the innovative activism of the Speaker, John Bercow, during the Commons Brexit process. This is why, for example, MPs cross-party are trying to add no deal bars to any legislation that does come up in the next couple of months, however tenuous the link to Brexit (see the Guardian here).

The notion that MPs were able to amend business motions caused a bit of a furore in the Commons when Bercow said he would accept such amendments. Brexiters insisted there was no precedent for this. (See this BBC report). He allowed a backbench amendment (from Grieve, demanding May return with a plan B within three days after her EU deal is voted down) to a “Business of the House” motion, normally (previously?) regarded as only amendable by ministers of the Crown.

If the amendment of Business motions were to become a precedent, it would allow MPs considerable powers to cause mischief for Governments (particularly in hung or nearly hung parliaments) trying to control how and when their business passes through the Commons. Arguably, though, May has brought this down on herself by abusing the Government’s control of the Commons agenda to first withdraw a vote on her Brexit deal and then, pretty obviously, to “run down the clock” to March 29, when Britain drops out of the EU with or without a deal.

Note: The EU’s Court of Justice has set out circumstances in which a revocation of the notice might be accepted by the EU “after a democratic process”: BBC report here and EU backgrounder here.)

]]>https://thinkinglegally.wordpress.com/2018/12/21/a-sovereign-parliament-hamstrung-when-it-comes-to-brexit/feed/0alrichMental Capacity (Amendment) Bill and DoLS: Welcome but flawed concessionhttps://thinkinglegally.wordpress.com/2018/11/27/mental-capacity-amendment-bill-and-dols-government-amendments-home-managers/
https://thinkinglegally.wordpress.com/2018/11/27/mental-capacity-amendment-bill-and-dols-government-amendments-home-managers/#respondTue, 27 Nov 2018 00:10:21 +0000http://thinkinglegally.wordpress.com/?p=1085Continue reading →]]>A useful byproduct of the Brexit madness in the UK Houses of Parliament seems to have been a small outbreak of moderately good sense in a matter far removed from the political hurly burly. To avoid a defeat in a fractious House of Commons, the Government has taken on board serious worries and U-turned over a proposal in the Mental Capacity (Amendment) Bill that is intended to deal with the debacle over the law on deprivation of liberty safeguards (DoLS) for those in care lacking mental capacity.

Those new to this subject may wish to start here: Deprivation of Liberty Safeguards Chaos. But, in brief, the judgment in P v Cheshire West ([2014] UKSC 19), left care providers having to take to court huge numbers of cases over potential deprivation of liberty of people lacking mental capacity. The issue was summed up thus:

“This case is about the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, then the deprivation has to be authorised, either by a court or by the procedures known as the deprivation of liberty safeguards [DoLS], set out in the Mental Capacity Act 2005 (“the Mental Capacity Act”). If they do not, no independent check is made on whether those arrangements are in the best interests of the mentally incapacitated person.” (Cheshire West at 1)

Cheshire West was intended to deal with the problem that local authority packages of care for people who lack mental capacity may constitute a breach of Article 5 of the European Convention on Human Rights on right to liberty. This, even though the care may have been in a care home or the individual’s own home – a situation characterised as “gilded cages” by critics of the judgment. So deprivation of liberty can occur “in community and domestic settings where the State is responsible for imposing such arrangements” including supported living arrangements (Department of Health Guidance, October 2015).

Courts became the only backstop to gain authorisations for people lacking mental capacity (so unable to consent to deprivation of liberty) in care homes, or their own home under a care package, to prevent this putative deprivation of liberty occuring without legal sanction.

“The number of applications not completed at the end of the reporting period increased by 7% on 2015/16, from 101 ,740 to 108,545 which is over 108,000 vulnerable adults who may be being illegally denied liberty or the right to associate freely with their own families at the moment.”

The new Bill
The Government is seeking to deal with the issue in the Mental Capacity (Amendment) Bill which introduces “Liberty Protection Safeguards” – but it has come up with a rather convoluted set of legal steps that caring bodies must follow to render this sort of “deprivation of liberty” lawful without having to go to court to sanction each one.

In a new Schedule 1AA to the Mental Capacity Act 2005, responsible bodies (such as local authorities offering care arrangements) must authorise deprivation of liberty with certain safeguards, including potentially the appointment of an Independent Mental Capacity Advocate (IMCA) for the individual concerned.

The problem – and it screams out to anyone reading the Bill – is regarding care homes where “the care home manager must arrange the relevant assessments and take the other necessary steps before an authorisation can be given by the responsible body”.

The care home manager makes a statement to the responsible body saying certain steps have been taken to safeguard the individual’s rights including: that an assessment has been made according to procedures set out in the legislation; an appropriate person has established the arrangements are necessary and proportionate; that necessary consultations have been undertaken (such as with anyone named by the cared-for person for the purpose or caring for her, any donee of a lasting power of attorney or an enduring power of attorney, any deputy appointed by the court, any “appropriate person” or independent mental capacity advocate concerned).

The problem
The responsible body would authorise the deprivation of liberty on the basis of this statement from the home manager. To an extent this looks like giving care home managers the power to mark their own homework – not least because a manager will have an interest in keeping the cared-for person in that care home.

This procedure has not found favour with organisations representing those with mental capacity issues because of the obvious conflict of interests involved – not merely in terms of the control with little oversight that it potentially gives care homes over the cared-for person, but the financial incentives home managers may have to be, let us say, not wholly objective in their assessments. So Age UK said:

“Under the Bill as it currently stands, care home managers will be required to undertake assessments that are presently conducted by the responsible body, such as the local authority. There is a fundamental conflict of interest with the role of care providers assessing arrangements within the services that they provide.”

So “where an assessor has a financial interest in the decision to deprive someone of liberty there must also be an independent external assessor”.

The government amendments
Up until November 2018 the Government had apparently ignored these criticisms. But suddenly, the health minister Lord O’Shaughnessy has got it. Introducing a series of amendments to the Mental Capacity (Amendment) Bill in the House of Lords, he said (5.15) on November 21: “You would have to have had ears of cloth not to have heard the concerns raised by noble Lords and stakeholders throughout the passage of the Bill about the proper role of care home managers.” So he was now authorised to say:

“I agree that we must be absolutely clear at this stage in legislation about what is the right role for those care home managers. I also agree that there should be no scope for any conflict of interest – not when we are talking about the safety and care of very vulnerable people – and that we should ensure that all assessments are completed by those with the appropriate experience and knowledge. Furthermore, people should always have confidence that they will have access to independent support and representation.”

Exactly. So now the proposal is to ensure “only responsible bodies can arrange the pre-authorisation review and that care home managers will be explicitly excluded from completing the pre-authorisation review”. The new amendments “will counteract any incentive the care home manager might have to ensure that a resident stays in a care home inappropriately” and also ensure “the care home manager cannot act as a gatekeeper to the IMCA appointment” – since an IMCA must be independent and, of course, be seen to be independent.

Questions outstanding
Sadly the government amendments actually put in yet another lumbering level of procedure rather than simply preventing care managers making the assessments for their statement to the responsible body. So now the responsible body (likely to be a local authority) will have a choice of making authorisations itself when a cared-for person is in a home (under paragraph 12 of the Bill; see below) or allowing the home’s manager to provide their statement (under paragraph 13) and act on it. If the manager is allowed to go ahead, s/he would no longer have a role in notifying the responsible body whether and IMCA should be appointed. Also (amendment 52):

“if the arrangements are care home arrangements and authorisation is being determined under paragraph 13 [where the care home manager does the assessment], an assessment may not be carried out by a person who has a prescribed connection with a care home”

The oddity of all this is that it leaves in place the possibility of home managers doing the assessment and submitting their statement – but the responsible body may step in and stop the home manager doing that. It’s not clear under what circumstances that would happen, and Lord O’Shaughnessy said merely this when introducing the amendment: that it

“requires the responsible body to make a decision on whether it is content that it is appropriate for the care home manager to carry out the relevant functions prior to authorisation, including arranging assessments and carrying out consultation”.

He went on to say:

“This power to remove the care home manager from the process can be enacted at any point, and we would expect it to be done at the earliest possible point, particularly if there are concerns.”

So the responsible body has – what? An investigatory duty to establish that the home manager is fit and proper or appropriate for the role? Can we be sure hard-pressed local authorities will take on this duty? There will be guidance to ensure consistency (almost an admission of a flaw in this scheme) and the amendment “significantly strengthens the role of local authorities in terms of oversight, intervention and supporting the quality of the operation of the scheme”. But why not simply leave it to local authorities and take care home managers out of the mix altogether?

And hasn’t his lordship misunderstood, or at least underplayed the conflict of interest in financial terms? It can’t just be about care home managers hiring in expertise with “a prescribed connection with [the] care home”.

Furthermore, it is interesting that his Lordship says we are “talking about the safety and care of very vulnerable people” rather than about their liberty – which is supposed to be the issue being dealt with by the new legislation. One can’t help thinking that the government is less concerned with actual liberty issues than gettting into place a legal procedure – any procedure – whereby people who can’t give consent can be deprived of liberty without too much court interference.

In the Lords Lady Barker welcomed these and other government amendments, saying: “I think we still have a difference of opinion about how life works in practice, but these amendments show a considerable movement.” So perhaps, rather like the madness occurring in The Other Place, this deal is simply better than no deal.

Amendment presented by O’Shaughnessy11A The responsible body may authorise arrangements—
(a) under paragraph 12, if the conditions in that paragraph are met, or
(b) under paragraph 13 if—
(i) the arrangements are care home arrangements,
(ii) the responsible body decides that authorisation should be determined under that paragraph instead of under paragraph 12, and
(iii) the conditions in paragraph 13 are met.”

The paragraphs of the Bill to which this refers:AuthorisationParagraph 12The responsible body may authorise arrangements, other than
care home arrangements, if—

(a)the responsible body is satisfied that this Schedule applies
to the arrangements,

(b)the responsible body is satisfied, on the basis of the15determinations required by paragraphs 15 and 16, that the
authorisation conditions are met,

(c)the responsible body has carried out consultation under
paragraph 17,

(d)the responsible body is satisfied that any requirement20under paragraph 36 or 37, that arises in relation to the
arrangements before they are authorised, has been
complied with,

(e)a pre-authorisation review has been carried out in
accordance with paragraphs 18 to 20,

(d)15that the determinations required by paragraphs 15 and 16
have been made,

(e)that the care home manager has carried out consultation
under paragraph 17,

(f)that any requirement under paragraph 34, [regarding when an IMCA should be appointed] that arises in20relation to the arrangements before they are authorised,
has been complied with, and

(g)that the care home manager—

(i)is satisfied that paragraph 18(2)(a) or (b) [review by an Approved Mental Capacity Professional if “ it is reasonable to believe that the cared-for person does not wish to reside in that place” or receive care there] applies,

(ii)is satisfied that neither applies, or

(iii)25is not satisfied that a decision can be made as to
whether either applies.

(2)The statement—

(a)must include the reasons for what is stated under sub-
paragraph (1)(b) and (g);

(b)30must be accompanied by—

(i)a record of the assessments on which the
determinations required by paragraph 15 were
made,

(ii)evidence of the consultation mentioned in sub-35paragraph (1)(e), and

(iii)a draft authorisation record prepared in
accordance with paragraph 21.

]]>https://thinkinglegally.wordpress.com/2018/11/27/mental-capacity-amendment-bill-and-dols-government-amendments-home-managers/feed/0alrichBoris Johnson’s colourful private life: a matter of public interest?https://thinkinglegally.wordpress.com/2018/09/11/boris-johnsons-colourful-private-life-a-matter-of-public-interest/
https://thinkinglegally.wordpress.com/2018/09/11/boris-johnsons-colourful-private-life-a-matter-of-public-interest/#commentsTue, 11 Sep 2018 18:26:06 +0000http://thinkinglegally.wordpress.com/?p=1074Continue reading →]]>It is open season in the UK press on MP Boris Johnson’s “colourful” private life as it is revealed that he and his wife are divorcing. He is alleged to be a serial adulterer with one woman said to have had an abortion as a result of a liasison with him and another having had an illegitimate child.

But here’s the legal issue: could Johnson, in light of the UK Supreme Court “celebrity threesome” judgment, get injunctions against publication of such material? Lord Mance, explaining that judgment (PJS v News Group), declared:

“There is no public interest, however much it may be of interest to some members of the public, in publishing kiss-and-tell stories or criticisms of private sexual conduct, simply because the persons involved are well-known; and so there is no right to invade privacy by publishing them. It is different if the story has some bearing on the performance of a public office or the correction of a misleading public impression cultivated by the person involved. But … that does not apply here.”

The judgment itself set the seal on an emerging privacy law, asserting that even the re-publication of material already accessible to all was an offence against an individual’s privacy because of its likely “intrusive and distressing effect”.

But is there a Boris exception? Do we have a legitimate public interest in the private life of a man who has occupied one of the highest political positions in the land – and certainly has his eyes on another?

On the one hand, the argument might run: we already know Johnson is a bit of a roué who hasn’t always observed his marriage vows to the letter; we’ve seen some of these stories already. Retailing them once more (or adding a few others, if there are any) hardly corrects a “misleading public impression”. They are merely intrusive and distressing. Injunction granted!

On the other hand, the right to privacy may be outweighed “by the public interest in the recklessness of the father”, as Judge Nicola Davies put it in the High Court in 2010 when the mother of Johnson’s illegitimate child sought an injunction against the Daily Mail to prevent further identification of the baby as Johnson’s.

The Johnson affair The child’s mother did not get her injunction, even after appeal to the Court of Appeal. AAA v Associated Newspapers (2013) gave the facts of the case: the mother had a child bearing a remarkable resemblance to Johnson (it was the hair that gave it away) and lawyers for the child sought an injunction to stop the Daily Mail writing further about the affair.

The first Daily Mail article on the matter in July 2010 included the following:

“… when the girl was born her appearance shocked [the mother’s partner] and led to jokes that she looked a lot more like [Johnson] … He [the mother’s partner] took a paternity test and discovered that he was not the father, prompting the couple to split.” The article referred to a friend of the mother’s partner having said: “the gossip among [the mother’s partner’s] friends was that this child when newborn had shocking wild red hair and bright blue eyes, and we were all saying she looked a lot more like [Johnson] than [the mother’s partner].”

It went on further:

“A friend of [the mother] said ‘early last year [the mother] was talking about her relationship with [Johnson] when she suddenly said ‘I slept with him’ in a ‘God, what have I done?’ sort of way’. The article said that the friend added: “It came as a shock when [the mother] discovered the father of [the child] wasn’t [the mother’s partner].”

The argument put on behalf of the child was that the courts should be guided by the best interests of a child and an expectation of privacy even though her mother had approved an interview she had given for a magazine article a few months after the Mail’s story (in, what was referred to coyly as “T Magazine” in the Court of Appeal), which referred to the child’s looks and her similarities with the father. (A passage inserted on the mother’s legal advice stated: “[the mother] has not confirmed, and will not confirm, at this stage, that [Johnson] is the baby’s father.”) The mother had also, at a party, told the head of the magazine group Condé Nast, Nicholas Coleridge, the name of the child’s father.

The child’s legal team rejected the notion that the right to privacy should be outweighed “by the public interest in the recklessness of the father”. The High Court had awarded £15,000 damages for repeated use of a photograph of the mother with her child in a buggy but did not give an injunction restraining writing about the paternity issue. Nicola Davies J said the child had an expectation of privacy but it was vitiated by her mother passing the magazine interview and what she had told Coleridge.

On appeal
In the Court of Appeal, the Master of the Rolls, Lord Dyson, also dismissed the appeal for an injunction. He noted that the Editors’ Code of Practice provides:

“In cases involving children under 16, editors must demonstrate an exceptional public interest to override the normally paramount interests of the child.”

“Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms.”

So it would have to be pretty serious for the courts to allow publication of material that, in effect, identifies a senior politician’s illegitimate child. In this case the mother seemed to have shown little concern about the privacy of her child, leading to Judge Davies saying she showed: “at the least, an ambivalence towards and an inconsistent approach with her stated aim in these proceedings”.

Nevertheless, a judge should have due regard to the privacy of a child under Article 8 of the European Convention on Human Rights (right to private and family life). But a judge must balance that against Article 10 rights of freedom of expression – particularly about matters of public interest. Judge Davies said this:

“The test required to justify publication is a high one, ‘exceptional public interest’. It is undisputed that there is a public interest in the professional and private life of the claimant’s supposed father. His professional position speaks for itself. As to his private life, he is man who has achieved a level of notoriety as result of extramarital adulterous liaisons. Of itself, the fact of an extramarital affair does not render inevitable the publishing of information that, as a result, a child was conceived. However, the claimant is alleged to be the second such child conceived as a result of an extramarital affair of the supposed father. It is said that such information goes to the issue of recklessness on the part of the supposed father, relevant both to his private and professional character, in particular his fitness for public office. I find that the identified issue of recklessness is one which is relevant to the professional and personal character of the supposed father. Specifically, I find that it goes beyond fame and notoriety [ie it is not simply that he is famous].”

James Price QC, at the Court of Appeal, objected (on behalf of the child) that any such moral/political issues could have been discussed without identification of the child. On which point the Daily Mail deputy editor Jon Steafel had said this:

“It could be, but there is an additional element to this, which is the charge against [the father] which has been levelled in relation to this case and previously, which is of recklessness. Self-evidently it is possible to have an extra marital affair and ensure that there is not a child. Extreme recklessness of this type was already on [Johnson’s] record, as we all know. There was a previous affair which resulted in the lady concerned having an abortion. That caused him great personal and professional discomfort, and this story appeared to suggest that history in his case was repeating itself, which made explaining the child’s part in the story and indeed demonstrating that the child looked an awful lot like [Johnson] very important.”

This found favour with Dyson, who said:

“The judge [Davies] recognised that the mere fact that the father had been involved in extramarital affairs did not of itself mean that it was in the public interest to publish information about a child whose conception resulted from such an affair (para 118). But she accepted the evidence of the deputy editor and the submission of [lawyer] Mr Browne that it was in the public interest to publish information about the claimant because the information went to the issue of recklessness and whether on that account he was fit for public office.”

It is not sufficient that someone – even a politician – is in the public eye. It depends on circumstances, and Judge Davies considered the circumstances made it a matter of public interest. As Dyson put it:

“It is clear that she [Davies] had in mind that the claimant was alleged to have been the second child conceived as a result of the father’s extramarital affairs. She may well also have accepted the defendant’s case that in his sexual activities the father was reckless about the feelings of others, particularly his wife and family. It was not material to the judge’s conclusion whether contraceptive precautions were taken. What was material was that the father’s infidelities resulted in the conception of children on two occasions. The judge was entitled to hold that this was of itself reckless behaviour, regardless of whether any contraceptive precautions were taken.”

The Mail article also made reference to the fact that Johnson had appointed the mother of the child to a public position as a fundraiser while she was in early pregnancy. Without this fact, Steafel suggested “it would have been a ‘closer call’ whether to publish the private information and the photograph”, though Davies made little of this.

Conclusion
So it does seem that there is a “Boris exception” regarding privacy – which would apply equally to others holding important office. It is not merely a matter of exposing hypocrisy (politicians holding themselves out as family men/women when they are not), but also revealing moral incompetency in private life, an inability to manage one’s private affairs that could pass over into public life.

Although AAA v Associated predates PJS v News Group, it is not inconsistent with Mance’s principles. It adds another layer. The case is rather muddied by the mother’s inconsistency of approach to her child’s privacy, but there is the overwhelming sense that these reports of Johnson’s “recklessness” in his private life give us relevant material to judge his public persona – and his fitness for high office (assuming anyone still honestly believes him to be so fitted).

The law on privacyIn England privacy law was founded on the Common Law notion of “confidence” ie confidentiality: that if you have a relationship of confidence with a person, that person should respect that confidence – keep confidential material private. This requires that:

• The material is not already in the public domain and is sensitive or significant (it has the necessary quality of confidence)
• It was obtained in circumstances when an obligation to keep it in confidence might be expected (doctor-patient or master-servant including employer/employee relationship)
• Use of the data has not been authorised
• Breach of confidence may be lawful if in the public interest

This law doesn’t contain a notion of personal privacy but rather that there are contractual relations that give rise to confidentiality, including marriage: Argyll v Argyll 1967, a very salacious divorce case involving the very racy Duchess of Argyll. It was established that the confidences between husband and wife were covered. The Duke had passed “confidences” to a newspaper which was then injuncted from reporting them. Ungoed-Thomas J said:

“It seems to me that the policy of the law, so far from indicating that communication between husband and wife should be excluded from protection against breaches of confidence given by the court in accordance with Prince Albert v Strange, strongly favours its inclusion, and in view of that policy it can hardly be an objection that such communications are not limited to business matters.”

The so-called “judge-made” privacy law has developed as a result of the Human Rights Act Section 6 which requires public bodies, including courts, to act in a way that is not incompatible with a European Convention right. Among those rights is the ECHR Article 8 right to privacy. The courts have considered themselvesd obliged to interpret English Common law in the light of the European Convention on Human Rights.

So in Campbell v MGN (Naomi Campbell sought compensation for the use of long-lens photos of her leaving a drug rehab centre) Lady Hale said:

“The 1998 Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties’ Convention rights.”

This means a claim of confidentiality will be viewed in the light of Article 8 andArticle 10 – on freedom of expression. This led to the creation of a hybrid confidence/privacy law in England and Wales – the Common Law on confidence reinterpreted through the lens of the ECHR. The law has developed further since then towards a purer privacy law, and arguably that is where the PJS judgment on the “celebrity threesome” has taken us.

]]>https://thinkinglegally.wordpress.com/2018/09/11/boris-johnsons-colourful-private-life-a-matter-of-public-interest/feed/2alrichImpeachment: its historic origins in Medieval Englandhttps://thinkinglegally.wordpress.com/2017/11/20/impeachment-its-historic-origins-in-medieval-england/
https://thinkinglegally.wordpress.com/2017/11/20/impeachment-its-historic-origins-in-medieval-england/#commentsMon, 20 Nov 2017 17:28:31 +0000http://thinkinglegally.wordpress.com/?p=1052Continue reading →]]>Impeachment – the ousting of presidents by the actions of parliaments and similar representative bodies – seems to be in vogue just now, whether in Zimbabwe, Brazil or, potentially (dare one say it) in the United States of America. But what is it and where did it come from?

Although most associated with presidential systems, its origins lie in medieval England, a time when the monarch’s Great Council was deemed to have the powers of a court of law.

The Council was what we know of as the House of Lords now. It was only with the early development of the House of Commons that the notion of impeachment developed. The bicameral nature of Parliament led to the interesting constitutional innovation: the idea that Parliament can put on trial ministers of the monarch for failing in their duty, even though those ministers were (and in theory remain to this day) responsible to the monarch, not to Parliament.

This is the thinking: It was accepted that “the king can do no wrong”; it followed that if the king apparently did a wrong, such as breach a longstanding agreement with Parliament, it was the king’s agent, not the king, who had done the wrong – a member of the king’s executive, one of his advisers.

The Great Council, when it was a baronial body, always had the role of a judicial body, albeit mainly to approve the legal judgments of the king. So, the argument ran, the remnant of that Council, the House of Lords (barons and bishops), could judge individuals but not bring charges against anyone. The House of Commons, however, had no such restriction, so it took it upon itself to bring charges as necessary against the monarch’s ministers to the Lords for their judgment – impeachment.

By this somewhat convoluted logic it was possible to produce the very practical effect of Parliament, and particularly the Commons, gaining a sort of proxy control over the king’s ministers – and indirectly over the king himself.

Such a process was used by the “Good Parliament” of 1376 to remove three of Edward III’s advisers, including his mistress, who were running the country in his name. It was formalised when used in 1386 by the “Wonderful parliament” against Richard II’s chancellor, the Earl of Suffolk for misuse of funds.

Impeachment remained a useful tool for Parliament to develop its power over the monarchy, particularly in the Civil War of the 17th century.

It was during the ferment of the 17th century that impeachment took on the qualities that are more familiar to us today in jurisdictions outside Britain. James I’s 1621 parliament was packed with Puritan gentlemen not enamoured of the corrupt goings on at court and the king’s attempts since 1614 to govern and raise monies by various illegitimate expedients without parliament.

Indeed, after so long away, members built something of a bonfire of the corrupt, using the rediscovered power of impeachment last used in Henry VI’s time against Lord Stanley in 1459. Sir Francis Bacon, by now lord chancellor and Baron Verulam, was the first to fall to a version of impeachment, accused of corruption in taking presents from parties to legal action in chancery. The evidence was sent from the Commons to the Lords for the peers to take action if they wished. He was fined, imprisoned (briefly) and barred from office. He was, in his own words, “a broken reed” though he later claimed a confession was forced out of him and that he had been “the justest judge that was in England these last 50 years”. He turned from public life to his writing, publishing among other works a utopian view of what a new society in the Americas might be like, New Atlantis.

A version of the revived impeachment procedure was also applied to Sir Giles Mompesson, a close associate of James’s favourite, Buckingham, through whose influence he gained certain patents. He was a commissioner with a patent to license inns as well as patents to sell decayed timber from forests and powers to prevent unlicensed gold and silver thread manufacture. All such powers he abused. For example, he extended his powers over inns to taverns even though these were overseen by local unpaid justices of the peace.

Of course, no licence would be given without more than legal amounts of money changing hands, and Mompesson cared little about the purpose of licensing: curbing rowdy drinking dens. On the question of gold and silver thread (nominally a monopoly to protect new techniques for making it) he had power to imprison those who failed to pay the fee and used this power to extort money.

He was returned as an MP in 1621. Since the Commons had no powers to deal with his abuses outside Parliament, the revival of impeachment was used to deal with him as an MP inside Parliament. Articles of impeachment were drawn up in the commons and carried to the Lords which sat as a court to rule on the case. He fled to France but was dispossessed in his absence.

This process was a constitutional innovation arrived at by Parliament asserting it for itself on the basis of precedent rather than receiving the powers from a higher authority. It became a crucial power for Parliament to control the executive in the coming conflict with monarchy. It was used again in 1624 against a rather bigger fish than Mompesson, Lionel Cranfield, earl of Middlesex, the lord treasurer. (Historians regard this as the first full revival of the old impeachment process.) Cranfield had had some success in curbing James’s spending but was found guilty of corruption (though his fate was largely as a result of falling out of favour with Buckingham).

In 1641 the earl of Strafford, close adviser of Charles I (who earlier, as Sir Thomas Wentworth, had been a parliamentary critic of James), was brought down by the process. Though cleared of treason on a technicality he was executed by order of Parliament on a bill of attainder (see note below).

The significance of impeachment was that it was an assertion that ministers, although appointed by the king, should be responsible to Parliament. This was not the Tudor monarchy’s view, and doubtless it was not James’s either. Impeachment was additionally useful to parliament because it was a process that did not require the king’s involvement, unlike attainder and other legislative bills.

It remains a power in the hands of the British Parliament today, though the strengthening of parliamentary democracy has made it (arguably) an unnecessary sanction – even though the responsibility of the modern prime minister and his ministers remains to the monarch, not directly to Parliament. The prime minister appoints and sacks ministers using royal prerogative powers and can himself or herself only be removed by the Queen, not directly by a vote of Parliament – except by impeachment.

This would involve a formal accusation by a member of Parliament or group of MPs made in the House of Commons. If the House agrees, the accuser goes to the “bar” of the House of Lords (the bar separates the two Houses) and the matter is debated by the peers who impeach the accused person if it they believe there are sufficient grounds.

The matter does not stop there, at least according to modern rules. The defendant would be arrested and delivered to “Black Rod”, a senior House of Lords official (seen during the state opening of Parliament banging on the door of the Commons with his black rod) and is entitled to defend himself. Judgment is only announced if the Commons wills it, so there is the option of a pardon. Since the Act of Settlement 1701the monarch has had no right of pardon in cases of impeachment:

“That no pardon under the Great Seal of England be pleadable to an impeachment by the Commons in Parliament.”

The last successful impeachment in Britain was in 1806 when Lord Melville was charged with corruption. Impeachment remains a theoretical possibility in Britain and was contemplated by a small group of MPs in the case of Tony Blair for taking the country into the war in Iraq.

The power of impeachment was, of course, transferred wholesale into the American Constitution, among others around the world. The Senate takes the role of a court with its origins in Medieval England and the House of Representatives brings the charge, as the British House of Commons did. In non-British jurisdictions, of course, the power became one to remove presidents (assuming presidents with executive power are equivalent to monarchs), not just the advisers of presidents. President Clinton was impeached by the House of Representatives in 1998, though acquitted by the Senate in 1999. More recently Dilma Rousseff of Brazil was impeached after 61 out of 81 senators voted for her removal.

Note: A related measure is an act of attainder, instituted in the 14th century, a parliamentary act which could be instituted by the Lords declaring someone guilty without the formal need of evidence, pleas or proof. As an act of Parliament it had to receive the royal assent and in practice was largely used by monarchs to condemn rebels. Death was frequently the penalty imposed and attainder also involved dispossession of the accused, which proved useful for cash-strapped kings. Oliver Cromwell was “attainted” retrospectively in 1660 in preparation for the restoration of the monarchy. The procedure was abolished in 1870.

Is it possible that Britain’s populist polemicist Katie Hopkins may be right? Perhaps, just on this one thing: the outcome of the Jack Monroe libel trial. She says the High Court judge who found against her for her inaccurate and rude tweets against Monroe was wrong and she intends to appeal.

Monroe was awarded £24,000 in damages in the High Court in a row over a tweet implying the food writer and activist approved of defacing a war memorial during an anti-austerity demonstration in Whitehall. Hopkins had simply confused Monroe with left-wing polemicist Laurie Penny. She deleted the tweet but then sent one out suggesting that, nonetheless, Monroe was a pretty awful person (“social anthrax” was the term used).

In the case Mr Justice Warby noted that:

“Libel consists of the publication by the defendant to one or more third parties of a statement about the claimant which has a tendency to defame the claimant, and causes or is likely to cause serious harm to the claimant’s reputation.”

Serious harm to reputation is crucial, particularly since the Defamation Act of 2013, which enshrined the concept in legislation – with the clear intention of curbing defamation actions seen as wasteful of court time and (one suspects) irritating to the Conservative Government’s friends among newspaper owners. It says at Section 1:

“(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”

The intention was to focus on real harm and deter trivial cases. But reading the Monroe judgment, one can’t help thinking that Warby underplayed “serious harm” and somewhat overplayed Monroe’s hurt feelings once Hopkins’s loyal fans got to work on Twitter. This apparently skewed judgment might be the grounds for an appeal.

Warby, in his decision, quotes this part of Monroe’s evidence in the case: that she was “completely horrified, both that people would think that I had vandalised a war memorial, and at the incoming storm that would be heading my way from the many people I believed would accept that what the Defendant had said was true”.

Warby is also at pains to say that he accepts “Ms Monroe’s evidence about how things were for her that evening” (the day of the offending tweets), that “she felt anxious and upset, and had difficulty sleeping”.

But the revised law (and indeed the old common law of libel) is not specifically intended to protect people from being upset or finding sleep difficult for a few days. It is to protect them from untrue claims that could seriously harm their reputation.

Traditionally the issue has been adjudged on the question: do the words complained of “lower the claimant in the estimation of right-thinking members of society in general” (Sim v Stretch (1936) at 1240) thereby holding the individual up to hatred or contempt. This is an objective test and does not require a claimant to show that her reputation has actually been lowered in the eyes of actual people, or even that it would be so damaged if unchecked. If it obviously could have been damaging, that was enough.

But, if it means anything, the new Defamation Act must surely have modified this basic position. After all Justice Minister Helen Grant told the House of Commons on April 2013 “we amended what was initially a ‘substantial harm’ requirement to one of ‘serious harm’ to raise the bar for bringing defamation claims”. The aim of the Act is to curb claims, not put more emphasis on hurt feelings. The point was made by Judge Moloney QC in Theedom v Nourish Training Ltd [2015] EWHC 3769 (QB):

“It is important to bear in mind that s 1 is essentially a threshold requirement, intended by Parliament to weed out those undeserving libel claims otherwise technically viable, but which do not involve actual serious harm to reputation or likely serious harm to reputation in the future.”

So this emphasises serious harm that has actually occurred or actually could occur in the future. But arguably the tweets against Monroe did not come anywhere near meeting this test. To prove actual serious harm or potential serious harm, it must surely be the case that claimants point to actual people (or actual classes of people) whose loss of faith in them could cause them real harm (by not buying their books or reading their columns any more, for example).

Warby’s view
Warby does not seem to be of this view. He holds that “right-thinking members of society generally would regard this [daubing memorials] as obnoxious behaviour” (even if left-thinking people might be less bothered), and so clings to the old test. He notes:

“It is not safe to infer that a claimant’s reputation has not been harmed by a specific defamatory allegation just because a person who makes rude remarks about the claimant after publication also made rude remarks about her before.” (para 71)

In other words the people who were unpleasant to Monroe before the tweets might take the opportunity of Hopkins’s allegation to be unpleasant again. Warby suggests that should not be taken as evidence of no harm. People might have a poor view of someone which becomes poorer when allegations like Hopkins’s come along. So:

“As Mr [William] Bennett [Monroe’s counsel] puts it, if someone is hated for their sexuality or their left-wing views, that does not mean they cannot be libelled by being accused of condoning the vandalisation of a war memorial. It can add to the list of reasons to revile her.”

Warby goes through a series of these double negative points (see “Monroe’s fans” below) and concludes: “I am not persuaded that the absence of evidence of this kind is evidence of a lack of harm.” Absence of evidence is not evidence of absence of evidence!

He thus fails to see a problem in the fact that Monroe did not produce any positive evidence of actual serious reputational harm or potential serious reputational harm in the actual circumstances. He seems to hold strongly to the view that hurt feelings are a major element of the tort of libel despite the legislative change (clarification?) of the 2013 Act. He quotes Bingham in a 1979 case regarding damages:

“That sum must [1] compensate him for the damage to his reputation; [2]vindicate his good name; and [3]take account of the distress, hurt and humiliation which the defamatory publication has caused.” John v MGN Ltd [1997] QB 586 (emphasis added).

But that is an old traditional case before the new line of cases that are the background to the legislative change. And even Warby says: “Head [3] is parasitic [ie dependent] on proof of harm to reputation, and needs to bear some relationship to that harm”. Nevertheless, he adduces no separate serious harm and asserts that:

“The injury to feelings [in Monroe’s case] was real and substantial, and has continued. It has been significantly exacerbated by the way the defence has been conducted. Nonetheless, compensation for hurt feelings should be in scale with the award that seeks to compensate for harm to reputation.”

He adds that “injury to feelings has been increased by the defendant’s behaviour” – removing but not apologising for the original tweet, failing to send Monroe £5,000 for Migrant Rescue at Monroe’s suggestion to settle the matter, and also, presumably, the very act of defending the case in court – and “the way the defence has been conducted” – which seems to come down to Hopkins’s lawyers not putting her in the witness box.

CommentWarby says: “The harm to reputation, though serious, will not have been grave.” But what is the serious harm that followed (or could, in the circumstances, have followed) from Hopkins’s tweets? People who don’t buy Monroe’s books out of prejudice aren’t going to buy any fewer after Hopkins’s claim. Fans of Monroe were given no reason to change their minds (see below). Monroe might have had to cope with a spike in Twitter bile, which is distressing, but does it qualify as actual, quantifiable serious harm to her reputation (which is what libel law is there to protect)? And can Hopkins’s decision to defend herself in what is, after all, a nascent area of law (Twitter libel, post 2013 Act libel) and her lawyers’ handling of the defence be added into the mix to create “serious harm” if there wasn’t any harm to reputation in the first place?

It is important to clear this matter up on appeal because otherwise it creates a fairly serious assault on free speech which the legislation was intended to avoid. The 2013 Act enshrined the view emerging in the courts that actual serious harm (or a real potential for serious harm in the future) had to be proved in libel, contrary to the traditional legal view (whereby, for example, if a friend received a defamatory note about you, it was deemed libellous even if the friend did not believe it). Warby, however, cleaves to the old view:

“Where an allegation has a seriously defamatory tendency and is widely published a claimant may choose to rely on those facts alone, perhaps in conjunction with evidence as to the identity of the publishees, as the basis for an inference that serious harm was actually caused … In some cases it may be enough. It is certainly not necessary in every case to engage in a detailed forensic examination of the precise factual picture, in order to determine whether the Serious Harm requirement is satisfied.”

The problem with Twitter is that there are many, many people standing in the wings waiting to hurl insults at people like Jack Monroe. If these insults are to be regarded as “serious harm” in themselves because they are distressing (rather than causing reputational harm or psychiatric harm as defined in Tort: a recognised psychiatric illness), it looks like quite a big loophole in the law. Whether the libel appeared in print or on Twitter itself, a claimant would simply give a nod to the view of a non-existent “right-thinking person” then point to the distressing results appearing on his or her Twitter timeline to win an action.

In this case Warby did not even have the evidence of the Tweets from the trolls to establish whether they might potentially have caused serious harm since they had been “extensively deleted”. He had Monroe’s testimony that they were bad and that even the prospect of their arrival was distressing, but little more.

Hopkins’s second tweet (the one that called Monroe “social anthrax”) has absolutely no inherent defamatory quality at all, even though Warby thought it merited £8,000 of the £24,000 damages. It is what has always been known in the world of defamation as “mere vulgar abuse”, a notion derived from slander but perhaps apt for the quick-fire conversational world of Twitter (see Mr Justice Eady on the ADFVN case below), making it unlikely to be truly actionable. Warby considers it actionable in libel because it had a link with the previous (by then deleted) tweet and hence (somewhat tenuously) bore the same meaning.

Such a low bar to the definition of “serious harm” in the world of Twitter cannot have been the intention of the 2013 Act since it would make users of Twitter more prone to being libelled than those who don’t have an account and hence can’t be got at by the trolls. Warby’s judgment needs serious rethinking.

No leave to appealWarby has now refused leave to appeal in the Monroe case on jurisdictional grounds but has also added on Hopkins’s grounds for appeal:

“This was not a case which raised any great issues of legal principle. It turned essentially on its own facts. The points of law that are raised are in my view untenable. The Court of Appeal will not lightly interfere with findings of fact.”

New payout MailOnline has now (November 2017) made a substantial payout as a result of a casual bit of inaccurate polemic from Katie Hopkins, this time against a teacher she accused of taking her class to a Donald Trump protest in Westminster (MailOnline payout: Guardian). The Mail apology is here. In further unhappy news for Hopkins, MailOnline has now ended its contractual relations with her.

Of interest
• This on the Twitter joke trial may also be of interest: Twitter joke and Lord Judge.
• Inforrm’s Blog has a report on the Monroe v Hopkins case and summings up here.• Background from Practical Law
• Karl McDonald (writing before the result of the case) said on iNews “Monroe v Hopkins is one of just a few high-profile examples of Twitter libel, but if it works, the loosely thrown accusations and insults of social media might suddenly become evidence, instead of simply background noise.”
• Tom Wright writes here on the rejected application to appeal
• An interesting House of Lords debate on serious harm is on Hansard here, making the point that the intention was to raise the bar for libel actions. During it Lord McNally, for the Government, said this:

“Establishing in statute a substantial harm test for the first time would give this requirement a new prominence and would help to discourage trivial and unfounded claims being brought. In its report, the Joint Committee on the draft Bill took the view that a stricter test was appropriate and that, ‘a threshold test that focuses on the seriousness of the allegation would raise the bar in a meaningful way and give greater confidence to publishers that statements which do not cause significant harm, including jokes, parody, and irreverent criticism, do not put them at risk of losing a libel claim’. It recommended a test of serious and substantial harm. [In the event “serious harm” was held to encompass “serious and substantial”.]

• Brendan O’Neill on Spiked sees the case as a “sad day for free speech”. He cites with approval the US Supreme Court ruling New York Times v Sullivan (1964: page 376 U. S. 272) as recognising the importance of free speech for wrong statements: “Erroneous statement is inevitable in free debate, and … it must be protected if the freedoms of expression are to have the ‘breathing space’ that they need to survive.” (The notion of the First Amendment rights needing “breathing space” is derived from NAACP v Button(1963: page 371 U. S. 433)

Note on Monroe’s fansGiven in the old days a statement can be defamatory even if it is not believed, what of those who like and respect Monroe? Hopkins’s lawyers pointed out that all the media coverage of the case on the day of the tweets was in the context of Hopkins having got it wrong with a focus on the Twitter spat between Hopkins and Monroe that ensued. So, their contention was, the libel was not more widely damaging to Monroe since the media presented it as wholly false from the start. In effect, one can say Monroe’s fans will not have had their view changed by the articles since the articles made clear the allegation was untrue.

Warby dismisses this point on the grounds that the media organisations were largely “liberal” or “of the left”. The readers of those pieces would have been favourable to Monroe from the start but “the coverage did not amount to an authoritative or comprehensive refutation of the original allegation. As Mr Bennett [for Monroe] points out, there was a potentially harmful impact of this publication, as it brought the whole matter to the attention of a fresh audience”.

But what was the harmful impact from Monroe’s sympathisers reading those favourable accounts? None at all, presumably, and a reading of the judgment does not seem to adduce any. In the context no actual serious harm could have occurred – and although it might have occurred in some other context, it would be absurd to create an alternative reality in which, say, the coverage might have been less sympathetic or have failed to clearly state the allegations were not true.

Lord Atkins’ test
“The question, then, is whether the words in their ordinary signification are capable of being defamatory … Judges and text book writers alike have found difficulty in defining with precision the word ‘defamatory’. The conventional phrase exposing the plaintiff to hatred, ridicule, or contempt is probably too narrow. The question is complicated by having to consider the person or class of persons, whose reaction to the publication is the test of the wrongful character of the words used. I do not intend to ask your Lordships to lay down a formal definition, but after collating the opinions of many authorities I propose in the present case the test: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally? … It is well settled that the judge must decide whether the words are capable of a defamatory meaning. That is a question of law: is there evidence of a tort? If they are capable, then the jury is to decide whether they are defamatory.” Sim v Stretch [1936] 2 All ER 1237

The emerging new test (Mr Justice Tugendhat)“There is a further point to be noted if my conclusion in paras 90 and 92 is correct [on a seriousness threshold]. If this is so, then it explains why in libel the law presumes that damage has been suffered by a claimant. If the likelihood of adverse consequences for a claimant is part of the definition of what is defamatory, then the presumption of damage is the logical corollary of what is already included in the definition. And conversely, the fact that in law damage is presumed is itself an argument why an imputation should not be held to be defamatory unless it has a tendency to have adverse effects upon the claimant. It is difficult to justify why there should be a presumption of damage if words can be defamatory while having no likely adverse consequence for the claimant. The Court of Appeal in Jameel v Dow Jones [Jameel v The Wall Street Journal Europe Sprl[2003] EWCA Civ 1694] declined to find that the presumption of damage was itself in conflict with Art 10 [European Convention on Human Rights on free expression] (see para [37]), but recognised that if in fact there was no or minimal actual damage an action for defamation could constitute an interference with freedom of expression which was not necessary for the protection of the claimant’s reputation.” Thornton v Telegraph Media [2010] EWHC 1414 (QB) at 93 (emphasis added).

Mere vulgar abuse: Mr Justice Eady
“It is this analogy with slander which led me in my ruling of 12 May to refer to ‘mere vulgar abuse’, which used to be discussed quite often in the heyday of slander actions. It is not so much a defence that is unique to slander as an aspect of interpreting the meaning of words. From the context of casual conversations, one can often tell that a remark is not to be taken literally or seriously and is rather to be construed merely as abuse. That is less common in the case of more permanent written communication, although it is by no means unknown. But in the case of a bulletin board thread it is often obvious to casual observers that people are just saying the first thing that comes into their heads and reacting in the heat of the moment. The remarks are often not intended, or to be taken, as serious.” Nigel Smith v ADVFN Plc and others[2008] EWHC 1797 (QB) at 17. [One might say the same of Twitter]

Explanatory notes to Section 1 of the 2013 Act:10. Subsection (1) of this section provides that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. The provision extends to situations where publication is likely to cause serious harm in order to cover situations where the harm has not yet occurred at the time the action for defamation is commenced. Subsection (2) indicates that for the purposes of the section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.

11.The section builds on the consideration given by the courts in a series of cases to the question of what is sufficient to establish that a statement is defamatory. A recent example is Thornton v Telegraph Media Group Ltd [2010] EWHC 1414. in which a decision of the House of Lords in Sim v Stretch [1936] 2 All ER 1237 was identified as authority for the existence of a “threshold of seriousness” in what is defamatory. There is also currently potential for trivial cases to be struck out on the basis that they are an abuse of process because so little is at stake. In Jameel v Dow Jones & Co [2005] EWCA Civ 75. it was established that there needs to be a real and substantial tort. The section raises the bar for bringing a claim so that only cases involving serious harm to the claimant’s reputation can be brought.

12.Subsection (2) reflects the fact that bodies trading for profit are already prevented from claiming damages for certain types of harm such as injury to feelings, and are in practice likely to have to show actual or likely financial loss. The requirement that this be serious is consistent with the new serious harm test in subsection (1).

]]>https://thinkinglegally.wordpress.com/2017/03/28/monroe-v-hopkins-libel-case-warby-retrograde-judgment/feed/0alrichBrexit case Miller/Santos: third day digesthttps://thinkinglegally.wordpress.com/2016/10/26/brexit-case-millersantos-third-day-digest/
https://thinkinglegally.wordpress.com/2016/10/26/brexit-case-millersantos-third-day-digest/#commentsWed, 26 Oct 2016 12:46:15 +0000http://thinkinglegally.wordpress.com/?p=961Continue reading →]]>Here are some of what seem to this writer crucial exchanges during the third day of the Brexit High Court case R (Miller and Santos) v Secretary of State. They concentrate on exchanges between the judges in the case and the lawyers. The original runs to 160 pages. The digested version of the first day is here. And the second day is here. The links to the transcripts appear at the bottom along with quoted cases and comment. (Note, some page numbers are included; they come at the bottom of the relevant pages ie refer to the text above). A report on the Supreme Court case is here: What if Eadie was right?

The third day of this case (Oct 18)

James Eadie QC on how the Article 50 notification process would work. He notes “there will on any view be considerable further Parliamentary involvement in the future” to which the Lord Chief Justice replied “Mm-hm”.

MR EADIE: [I]f there was an Article 50(2) withdrawal agreement, that would be a treaty between the United Kingdom and the EU.

THE LORD CHIEF JUSTICE: Yes.

MR EADIE: As such, it is likely that it will come within the procedures in CRAG [Constitutional Reform and Governance Act 2010]. … It will be a treaty, but I say likely to fall within the procedures within CRAG, because CRAG, like the Ponsonby memorandum which it sought to embody … CRAG only applies to treaties which are subject to a formal process of ratification. See, amongst other things, section 25(3) and (4), and indeed the process of ratification which is the cornerstone of the Act in section 20. Now, almost all treaties are, but not all treaties are, subject to ratification. In other words you can on the international plane enter into an agreement without ratification necessarily following … those agreements do happen but they are pretty rare, and it is considered very likely that this agreement, if entered into, in other words the 50(2) agreement, would be a treaty requiring ratification. Of course one can’t exclude the theoretical possibility that it wouldn’t be.

Eadie describes the “double negative” procedure whereby the Treaty is placed in both Houses of Parliament for ratification or rejection. He agrees with the LCJ that “in the contingency that there was an agreement, Parliament could say no”.

MR EADIE: It is ultimately dependent upon the agreement of the parties to the treaty, whether they want it to be

page 6

subject to ratification or not. But as I say, the view within government is that it is very likely that this treaty will be subject to ratification process in the usual way. Most of them are. It is a pretty rare event for the things to take effect immediately upon accession, as it were.

…

THE LORD CHIEF JUSTICE: But could the United Kingdom and the European Union agree it didn’t need ratification? Is that what you mean?

MR EADIE: They could in theory.

…

LORD JUSTICE SALES: Conceivably, the European Union

Page 7

says: we don’t want the uncertainty of being subject to this ratification procedure, therefore we are proposing an agreement without ratification; UK government says: no, we want ratification; but then you might be in a situation where you don’t get the agreement under Article 50(2).

MR EADIE: It is possible … As I say, the government’s view at the moment is it is very likely that any such agreement would be subject to ratification, and therefore fall within the provisions of this Act.

LORD JUSTICE SALES: Right. Just to tease it out, that depends upon UK government’s view at the end of a process of negotiation and the view of the European Union.

MR EADIE: Necessarily.

LORD JUSTICE SALES: They both have to agree.

MR EADIE: Necessarily, because the requirement for ratification is a term of the international agreement, which requires therefore the agreement of both parties before it goes in.

…

LORD JUSTICE SALES: Yes.

THE LORD CHIEF JUSTICE: I just wanted you to explain that so people actually understood.

MR EADIE: Yes, I hope that is helpful and I hope you understand why we can’t go further in terms of likelihood or certainty.

THE LORD CHIEF JUSTICE: Of course you can’t. So long as the position is explained so people understand it. It is not for us, or I think for you, to go any further.

MR EADIE: That is the position in relation to the Crown, therefore.

LORD JUSTICE SALES: To state the obvious, it is not Parliamentary approval in the form of primary legislation, but in the form of resolutions of both Houses as set out in section 20.

MR EADIE: The section 20 process does not require primary legislation, unlike the 2011 Act, to which I will come in a moment.

…

[B] efore one gets to that stage, in other words the stage of the possibility of

an agreement and CRAG being operated, Parliament will have, in advance of any of that, or is likely to have a central role in the amendment of the domestic legislation. You know that prior to the UK withdrawing, prior to that two-year period being reached and prior to any agreement being reached, the government have announced that they will bring forward legislation in the next Parliamentary session, the great repeal bill. Its effect as publicly announced, and if enacted, will be to repeal the European Communities Act 1972, but to repeal it effective at the point of withdrawal; and also to bring in, if I can put it that way, the existing — and where possible, existing EU law, into domestic law at

the point of withdrawal. Now, that, of course, is consistent with my sequencing point. It is permissible and indeed standard for Crown action on the international level to be followed by Parliamentary action implementing that. But the crucial points, it might be thought, that flow from the repeal act for the purpose of this case are first that Parliament will have an opportunity to decide which rights deriving from EU law will be retained following withdrawal.

…

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Currently, legislation provides for certain rights. Parliament would have to be involved legislatively to deal with those. A great repeal bill is enacted. Parliament will then, again, necessarily, and inevitably, be involved in any further alteration to the newly domesticated rights.

…

THE LORD CHIEF JUSTICE: Are you in effect saying, that bill will deal with what we shorthand described as category one rights. [See Day 2 “taxonomy”] Those are ones that are within the control of Parliament. You know, domestically, for example, if someone decided they wanted to make part of UK law something like — a Working Time Directive is a very good example. Because that really applies domestically. That would be a category one right.

MR EADIE: Yes. It will deal with a bit of category one in part and category two in part. I don’t want to get too sucked into the categories. It doesn’t need to deal with those EU law sourced rights, if I can put them that way, that are currently and already implemented into domestic law through either primary or secondary legislation, because you need legislation for those anyway. What will be domesticated is the remaining sets of rights, as it were, that might be directly applicable from Europe — my Lord is right about the Working Time Directive.

…

THE LORD CHIEF JUSTICE: No, but trying to understand the argument in its entirety, the deprivation of what one would call the voting, by way of illustration, [ie right to vote in EU Parliament election] category three voting, category two freedom of movement, those would be rights that would, if the agreement under Article 50 is subject to ratification, subject to the point you made on that, Parliament would have the control by saying: well, we don’t like it, we are not ratifying what the government has agreed. Therefore the agreement under Article 50 couldn’t be made without Parliamentary approval.

MR EADIE: I think once that agreement goes in, that would prompt the question, I suppose, of whether, in relation to rights or obligations which were not expressly covered in the agreement, whether the ratification process would cover those.

THE LORD CHIEF JUSTICE: Yes.

MR EADIE: Whether those would simply be necessary incidents of leaving the club. It would raise that question.

THE LORD CHIEF JUSTICE: I think, as we agreed, Article 50 envisages an agreement between the United Kingdom and the European Union.

MR EADIE: Acting in a certain way through the [European] Council with qualified majority and European Parliamentary approval.

THE LORD CHIEF JUSTICE: Yes.

MR EADIE: The question ultimately is whether or not the treaty — whether that would be a treaty which, quote, ‘amends or replaces [EU treaties] TEU or TFEU’, section 2(1) of the 2011 Act.

THE LORD CHIEF JUSTICE: Mm-hm.

MR EADIE: Of course, if it did, there might be all sorts of other inconveniences and difficulties potentially, but it would provide, as it were, a silver bullet on behalf of government, because we would then say: well, there is the Act of Parliament, what are you worrying about? But

Page 20

we respectfully submit that that is not the correct reading of section 2(1). That agreement would not be an agreement amending or replacing the TFEU on the proper interpretation of that piece of legislation.

LORD JUSTICE SALES: Why wouldn’t it replace the TEU or the TFEU?

MR EADIE: Because this piece of information [legislation, presumably], we respectfully submit, establishes a regime for dealing with treaty changes, and other EU level decisions, and notifications which are of concern to the UK in general, and to Parliament in particular as a result of UK membership of the EU. That is what we say this is designed to do [ie make changes while a member of the EU]. One can see a literal argument that says, well, it would drop away or it would replace, I am not sure it would necessarily replace, because it would be a wholly different agreement which wouldn’t operate in the same way at all.

Page 21

But this issue is an issue of the correct interpretation of a piece of domestic legislation … [I]t [the new treaty post-Brexit] represents a different species of agreement, in my submission. This is premised, this piece of legislation [2011 Act], on the assumption that we continue to be members, and the TEU and the TFEU are agreements on the international plane which govern the relationship, as it were, inter se, of those member states who are all members of the club, if I can put it that way. What we are dealing with is a fundamentally different beast which is a new relationship between the EU, as it were, on the outside and us on the outside. It is as though the EU were entering into an agreement with America or Colombia. It isn’t what this piece legislation is designed to do. The purpose of this piece of legislation was to say: before you do anything which amends or replaces in relevant respects the existing relationship whilst we continue to be members of the club, you have to come back to Parliament, because we are worried about further encroachments on

Page 22

Parliamentary sovereignty and everything else. That is why you have the referendum conditions [in the 2011 Act ie for changes to EU treaties. Eadie’s argument is that the 2011 Act required parliamentary input into changes in EU treaties (and a referendum) but the Act does not apply to exiting from the EU altogether].

… [I] query whether the TEU and the TFEU would be replaced [and thus be covered by the 2011 Act]. They would presumably stay in the same form and this [agreement pursuant to the Article 50 notice] would just be a new agreement alongside [hence not covered by the procedure of the 2011 Act].

LORD CHIEF JUSTICE You obtain an Article 50(2) agreement and you say that, I assume, is not an agreement which is amending or replacing the TFEU.

MR EADIE: It is a different beast.

THE LORD CHIEF JUSTICE: The consequence of that is the treaties then cease to apply, because that is what Article 50(3) says. MR EADIE: Yes. They are not amending or replacing. They are not introducing, as it were, new rules for the club.

…

[T]he 2011 Act doesn’t deal at all with that initial stage in the process and they wouldn’t on any view fall within these provisions.

LORD CHIEF JUSTICE: Yes.

EADIE: … As my Lord has rightly pointed out, the 2011 Act doesn’t deal at all with that initial stage in the process and they wouldn’t on any view fall within these provisions.

LORD CHIEF JUSTICE: Yes.

Page 25

But even if they would, this is dealing with a later point in time and assumes the making of a treaty. This is nothing to do with taking the step that starts the negotiating process.

…

LORD CHIEF JUSTICE: I think the effect of your — just to follow this through — argument is that if the government makes an agreement, if the executive makes an agreement using ordinary prerogative powers, that agreement will be subject to the 2010 Act and Parliament can say yea or nay to it, subject to the point on ratification. Therefore the only oddity about the bit where there isn’t control is —

MR EADIE: If no agreement.

THE LORD CHIEF JUSTICE: — the two-year point.

MR EADIE: And assuming no agreement.

THE LORD CHIEF JUSTICE: Yes, it is the two-year point.

MR EADIE: Exactly. In relation to that, you have all my submissions about Parliamentary intervention, the legislative rights they would have to deal with, the great repeal bill, the reality and so on.

LORD CHIEF JUSTICE: But the fundamental answer is that actually at the end of the day, if there is to be a negotiated agreement, subject to ratification, it would be up to Parliament to say yes or no.

MR EADIE: Yes, I have used the words I have used deliberately, in terms of likelihood, but for the reason

Page 27

I have explained. I don’t want to keep coming back to that point.

THE LORD CHIEF JUSTICE: But the likelihood only depends on the question of ratification.

MR EADIE: Yes. The court may or may not have appreciated

this; there is an exceptional circumstances thing which I probably should draw your attention to.

THE LORD CHIEF JUSTICE: Yes.

MR EADIE: In CRAG, just so you have the complete picture, which is again another reason for saying likely. I don’t think anyone is envisaging that that either would or could be operated other than in circumstances which are genuinely and truly exceptional.

…

Lord JUSTICE SALES: Yes. So there is a sort of opt out for the executive –

MR EADIE: If there are exceptional circumstances.

LORD JUSTICE SALES: — from the ratification.

MR EADIE: No doubt subject to both legal and Parliamentary control. No one is envisaging that outcome at the moment

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Submissions of Mr Jason Coppel QC

(Dealing with the interveners’ points)

We submit that the interveners have seriously overstated the effect of the decision to withdraw from the EU and the notification of that decision on the rights which are conferred on individuals by UK domestic law… It is said there would be a very serious impact on citizenship rights, and that that very serious impact means that by necessary implication, the prerogative has been excluded. The proposition that I want to put to you first of all is that UK citizens have very few rights as EU citizens which are enjoyed as a result of the 1972 Act. Of those rights, none are directly affected by notification and as a matter of law, all could be preserved upon withdrawal, should Parliament so choose.

[He described significant rights in effect as bi-lateral – as if, for example, one had such rights thanks to a Treaty with France. For example, free movement:]

[I]n relation to the right to go and live in France, the obligation of the UK government, and therefore the rights conferred by the European Communities Act, those rights are limited. They are a right against the government not to stop you from leaving the country, or not to deter you from leaving the country, by fining you, for example, and to allow to come back to France once you have had enough of good life. But that right, those rights, are currently provided under domestic law. They fall in to the category if nothing were changed they would continue and on view, they are rights which Parliament could continue, or could ensure will continue after withdrawal. But the substantial part of the right to reside in

Page 33

France, is a right which France confers, pursuant in particular to EU law, as a result of the international obligations which the Crown has entered into on behalf of the UK in the EU treaties.

LORD JUSTICE SALES: But in a certain sense, that is a product of the European Communities Act because we have been told that the European Communities Act and subsequent primary legislation was necessary in order for the United Kingdom to ratify those treaties, and therefore to secure the benefit of those treaties for its citizens.

MR COPPEL: Well, no. My Lord, what was — necessary as far as domestic law was concerned, yes, certainly was to ratify the treaties, and because of the 1978 Act and subsequent statutes, Parliamentary approval was necessary for that. But the right to live in France was not a right which was ever conferred by the European Communities Act itself, because that confers rights to be used and given effect in the UK. That is what it says. So should a UK citizen be expelled from France unjustifiably, his right is under French immigration law. He goes to the French court, he doesn’t rely on the European Communities Act, he goes to the French

Page courts and he relies on their equivalent of the European Communities Act and their immigration law, and says: because of your international obligations you are not allowed to do this; but this is not as a result of the European Communities Act.

[So, Coppel’s argument goes, the right of free movement is in effect a treaty right, not a right as a result of the ECA 1972 – which is an act that ensures EU law is passed into UK law and recognised in UK courts. If France barred free movement to a British person, that person would go through the French courts and ultimately to the EU Court of Justice in Luxembourg; UK courts would be out of the picture, having no sway in France. As Coppel says: “What business would Parliament have, enacting in domestic legislation the obligations of a foreign state?” The same could be said of British businesses’ rights to export to France free of tariffs.]

…

COPPEL: [T]he rights which are conferred by the European Communities Act, as far as going to live in France is concerned, let’s stay with that example, those rights are the right to leave the country and to be allowed back in. Not the right to live in France. That is what I say.

LORD CHIEF JUSTICE: But he gets the right to live in

France through citizenship of the European Union.

MR COPPEL: Well, my Lord, yes, that is the ultimate origin of it; that is the international treaty provisions, which give him, ultimately, that right. But when he goes to the French courts to complain about being unjustifiably expelled from France, his rights are under French law implementing citizenship rights.

[Coppel goes through various rights in this way. Eg Article 22 TFEU, right to vote in local elections in other countries, would be lost:]

MR COPPEL: But that is not the removal of a right which is conferred by [UK] domestic law. If Romania prevents a British citizen from voting in Romanian local elections, their cause of action is not under the

Page 42

European Communities Act, it is under Romanian law, which Romania has implemented as a result of its international obligations under the treaties. [Similarly Art 23, consular protection; Art 24 to petition the European Parliament; right to approach the Court of Justice for a preliminary reference, right to healthcare.] … The right to seek employment, work, 19 exercise the right of establishment or provide services in any member state; the same point arises. You have a right against the UK to not stop you from leaving, or not to discourage you from service provisions in the other states, but the substance of the rights is a right enforceable against other states under their legislation in due course.

Page 46

… So if the UK citizen goes to France, Spain, wherever, they have a right to be treated equally within the material scope of the treaty. But again, that is a right not used, or given effect, in the UK. It is in other member states under their law against them.

JUSTICE SALES: But presumably if there was a French person in the UK, they would have rights under our law here.

MR COPPEL: Yes, yes… As far as the French citizen is concerned in the UK, they the moment rights under UK domestic legislation Equality Act not to be discriminated against on of nationality [ie because EU law has been enacted as a UK parliamentary statute – and would remain in UK law until repealed under the “Great Repeal Act” provisions, presumably by statutory instrument. He turned to the EU’s Charter of Fundamental Rights.]

MR COPPEL: Some of these rights [in the Charter] are only enjoyable against other member states, some are the same as the Convention on Human Rights which we already have,

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some are implemented under UK legislation. There isn’t really anything different in the analysis. Mr Gill relied in particular on the rights of Zambrano carers, the carers of UK citizen children to remain in this country so as to avoid their children having to leave the EU. That is a right which, as he mentioned, is conferred by the 2006 regulations that he handed up to you and the particular provision, just for your note, is regulation 15A(4)(a). But again, this is within the category of a right which has been implemented in to UK law. It is in domestic legislation. In itself, as a matter of law, notifying and then leaving the EU has no effect on that legislation.

So what this all comes down to is in the three categories, and I hope I haven’t lost track of the typology, the category one rights are those which are either already in domestic law and will continue to be as a matter of law, no change due to notification; or can be transposed into domestic legislation. I think1 this category particularly includes directly applicable regulations to which the Master of the Rolls referred yesterday. Those need not currently be implemented in domestic legislation but they could be. That is the great repeal bill that Mr Eadie was discussing. Then you have the category two rights not within the gift of Parliament, but as I have said, that indicates that they were never actually conferred by Parliament in the first place. It could not do so and it did not do so.
LORD JUSTICE SALES: Just so we are clear, the category two rights are the rights, for instance, of the UK citizen in France that you have been referring to.
MR COPPEL: Yes, as I understand the categorisation.
THE LORD CHIEF JUSTICE: How did the British citizen acquire
Page 50
the right of free movement?
COPPEL: Well, that is as a result of the international obligations which the UK has entered into with the other member states of the EU at a high level. What does the right of free movement mean, one has to ask what that9 means.
THE LORD CHIEF JUSTICE: No, no —
MR COPPEL: On the ground, when you move to France, Spain or whichever country, the UK citizen has a right of free movement either as a result of their domestic legislation, or if they haven’t got domestic legislation, he can rely directly upon the treaty against that country.
THE LORD CHIEF JUSTICE: And his right to Union citizenship, similarly, comes from the treaty?
MR COPPEL: Yes, his status as an EU citizen with the rights which come with that, comes from the treaty.
…
R COPPEL: Then you have your category three rights, which are the rights to belong to and use the institutions of the club while you are a member of the club. Now, you have heard submissions about that. It is a small category, in my submission. In terms of a right which is conferred by domestic law, there are the rights to vote and stand in European Parliament elections, not1 conferred by the 1972 Act but by later legislation.
…
THE MASTER OF THE ROLLS: Well, category three in a sense covers all of those where not given effect in primary legislation either here or in any of those countries.
MR COPPEL: As I understood the categorisation, those rights that are not within the gift of Parliament, rights, were in category two.
THE MASTER OF THE ROLLS: I see.
MR COPPEL: The position is that much depends upon the content and outcome of the negotiations.
THE MASTER OF THE ROLLS: Yes.
MR COPPEL: Certainly they aren’t within the gift of Parliament.
THE MASTER OF THE ROLLS: What you could say is — I think
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you are addressing here that narrower point about what rights have actually been granted by the 1973 Act, which affect here, the words used here. But there is this wider category of rights enjoyed by British citizens in all of the other member states. What I am saying is those are not within the gift of the UK government.
MR COPPEL: That’s right.
THE MASTER OF THE ROLLS: That applies to all of these rights which they derive from, as EU citizens.
MR COPPEL: Yes. So those rights were not conferred by1 domestic law to start with, so never within the gift of the UK government. They won’t be within the gift of the government in the future, but, depending on the content and outcome of the negotiations, they may be enshrined in domestic law. But my Lord, the critical point is that the argument against us is all about impact on rights conferred by domestic law. Now, the point of my submission, which I will finish in a moment, which I have been making, is that the category of domestic law rights which will inevitably be affected by notification is very small, and really is principally within that category of rights to use the institutions of the club, which you have heard about from Mr Eadie. That does impact, we say, upon what implications should be drawn from the
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statutory scheme.
…
The great majority of the rights which Ms Mountfield, on which she rests her case, were never conferred by Parliament in the first place and so certainly haven’t been dispensed with. Those which have been conferred by Parliament, or by subordinate legislation, as a matter of law will remain notwithstanding notification and even withdrawal. Parliament will be consulted, as you have heard, and will have control over the corpus of domestic law as it stands after the withdrawal.

Devolution

Addressing the claimants on:

1) “leaving the EU would remove one aspect of the scheme of vires of the devolved governments set out in the devolution legislation. They all have to comply with EU law” (Mountfield Day 1);

COPPEL: “[Q]uite simply, is that the submission on the other side is on the 1972 Act is what it is; it doesn’t get any better when one looks at different manifestations of the 1972 Act in different legislation. The same arguments apply, we say, it assumes and doesn’t require membership.”

2) Re Article 18 of the Union with Scotland Act (Articles of Union pdf – trade laws to be the same in Scotland and England) COPPEL: “[T]here is nothing to suggest that the basic constitutional background is any different in Scotland than England, and the same issue arises whether Parliament has left in the hands of the Crown the prerogative power to decide to withdraw. There are a number of other reasons why Article 18 doesn’t help; non-justiciability, no impact on private law, there is a whole range of them; but really it suffices for my purposes to say that it just doesn’t change the argument”.]

Cases referred toA-G v De Keyser’s Royal Hotel Ltd Wartime occupation of hotel for defence purposes under prerogative – claim for compensation under Defence Act. Parliament ousted prerogative power, so compensation payable ie prerogative couldn’t be used when a Statute existed for the same purpose. Official law report pdf.

Here is the second part of what seem to this writer crucial exchanges during the Brexit High Court case R (Miller and Santos) v Secretary of State for those not wishing to read the 580-odd pages of the transcript. It mainly contains Eadie’s second day arguments on behalf of the Government. They look mostly at questions put by the judges in the case and the answers. The links to the transcripts appear at the bottom along with quoted cases and comment. The digested version of the first day is here. And the third day is here. A report/analysis of the Supreme Court case is here: What if Eadie was right?

The second day of the case (Oct 17)

Ms MOUNTFIELD: Since the passage of the European Communities Act, no EU treaty has ever been ratified without prior Parliamentary authority, and I submit that that is necessary because of the two otherwise inconsistent constitutional principles. The Crown can make treaties, but not if, or to the extent, that they confer rights or impose liabilities in domestic law, or withdraw rights and liabilities in domestic law. I say that the consequence of that is that while the European Communities Act is in force, the prerogative power, either to make further treaties or to amend treaties, or to withdraw from treaties is impliedly abrogated, because otherwise it would be the Crown and not Parliament which would be conferring or withdrawing rights.If there is any doubt about that, section 2 of the European Union Act expressly provides that the Crown may not ratify a treaty which amends or replaces the existing treaties without Parliamentary authority, through various procedures.

I submit that since the purpose of that provision is to prevent the Crown from altering the foundations of EU law as it applies within the UK without Parliamentarysanction, and we have quoted William Hague introducing the 2011 Act saying that, by necessary implication, that restriction extends to any act of the Crown which would withdraw from or revoke those treaties without Parliamentary sanction, and thereby remove directly enforceable rights.

I don’t have more time to develop that argument in detail, but I would invite the court to consider carefully the submissions on this in our skeleton argument at paragraphs 29 to 41 and 47 to 50. I then turn to my fifth proposition, which is thatnotification of withdrawal from the EU, using the prerogative, would be unlawful because it would be ultra vires the Bill of Rights. … The relevant provision is very well known, the late dispensing power.

“The pretended power of dispensing with laws or the execution of laws by word regal authority as it had been assumed and exercised of late is illegal.”

… I invite you to find that the relevant definitions of “dispense” in this context are to forego or to disregard; and to execute a law or purpose is to put it into effect. So to forego or to disregard the putting into effect of a law or the purpose behind the law. So for this limb of my submissions, I have to submit that in practical terms, the putting into effect of the purpose of the European Communities Act, that purpose being to enlarge the EU by having the UK as a member of it, would be foregone or disregarded if a minister of the Crown were to act so as to require the UK to leave the EU. So too would the purpose and putting into effect of many other laws, like the name European Parliamentary Elections Act 2002.

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I want to take your Lordships, I am conscious of the time, to three authorities which support this submission. The first is the case of Proclamations … of course it pre-dates the Bill of Rights. But I want to show you it, because it is an example of the pretended power, or gives an example of the pretended power of regal authority, which Lord Coke gave as an example of a legal action, to which in my submission the Bill of Rights was referring when it said this these dispensing powers had been used, assumed and exercised, illegally before it was brought in to force. Lord Coke said: “We do find diverse precedents of proclamations which are utterly against law and reason and for that void.” [Coke continued:]

“An Act was made by which foreigners were licensed to merchandise within London. Henry IV, by proclamation, prohibited the execution of it, and that it should be in suspense until the next Parliament, which was against the law.”

So this is an example, which is right on point, an Act which provides for freedom of movement and establishment of foreign merchants. The Crown doesn’t purport to repeal this act; it simply frustrates its purpose by a decree which makes the intended purpose of the Act unenforceable for a particular period of time.

…

MR EADIE [for the Government]: The prerogative, it has often been said, is the residue of powers left in the hands of the Crown. We submit that words need to be added to the end of that description of the prerogative and the correct and true principle is that the prerogative is the residue of powers left in the hands of the Crown by Parliament. That is true as a general proposition. It is all the more true in circumstances in which Parliament has decided to impose some, but specific, controls in the relevant area, where the prerogative operates.

LORD CHIEF JUSTICE: But the basic principle is, it is reflected in the cases dealing with our adherence to the European Convention before the Human Rights Act; that if the Crown enters into a treaty, no rights can be derived by citizens under that treaty as a matter of domestic law and so it can’t affect domestic law, so you don’t quarrel with that principle.

MR EADIE: I don’t, I don’t quarrel with that basic principle.

THE LORD CHIEF JUSTICE: Okay.

It is accepted by everyone that if the Crown enters into a treaty it has no effect on the rights of the citizen until it is given effect to by domestic law. But what is clear you are saying, I think, is that the opposite isn’t true; that you can withdraw from a treaty defeat the rights that Parliament has conferred.

MR EADIE: You can withdraw from a treaty but the reason I say I don’t rely on that distinction is because my base proposition is that the impact, whether or not the exercise of the prerogative impacts to increase rights or to decrease them, whether or not that position ensues from either the making of the treaty or from the withdrawal of the treaty, ultimately involves asking the same question. Which is whether or not Parliament has chosen to leave that power in the hands of the Crown. Parliament could, for example, have passed an Act that said in in [its?] sphere the rights and obligations that are available in domestic law shall be those that flow from the making of a treaty.

LORD JUSTICE SALES: But night not the inference of Parliament’s intents be rather different depending on the two contexts my Lord put to you.

MR EADIE: It is possible.

LORD JUSTICE SALES: It might not be surprising that Parliament seeks to control the prerogative when it knows the exercise has no effect in domestic law which is Parliament’s concern. It might be said that the context is rather different if the background is that Parliament contemplates that exercise of a particular prerogative power, here the right to withdraw from treaties, will have affects on domestic law, which might be said to be contrary to very strong traditions of the common law, as illustrated by the case of Proclamations and the Bill of Rights.

MR EADIE: My Lord, I don’t disagree with the proposition that the context is thoroughly important. The question is what is Parliament’s intention, and once one accepts the proposition that Parliament could leave in the hands of the Crown a power, a prerogative power, to make or to unmake treaties, even though that power might have direct or indirect impact on domestic legal rights, the only question that remains is was that Parliament’s intention. My Lord puts to me well, that is a factor, it is almost like the principle of legality brought into this context, as it were, which is one of the arguments again me which I will come back to. But my proposition starts from a submission that Parliament can, and I gave you the example of Parliament doing it expressly, a hypothetical example of Parliament do ignore it expressly, Parliament can do that even if the effect of that prerogative is it would have a direct and immediate effect on ^.

LORD JUSTICE SALES: You see it might be said that both your argument and Lord Pannick’s argument both refer back to back ground constitutional understandings in order to inform the proper inference as to the intention of Parliament in the 1972 Act. You say there is a background constitutional settlement understanding that conduct of international affairs is for the Crown, Lord Pannick says there is a background constitutional context that the executive can’t change rights which exist in domestic law. Whether it be by common law or by statute. So at so some level there seems to be a contest between what we derive from these two aspects of the

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constitutional background, as indicators for the proper interpretation of, well, whichever Act one is looking at.

MR EADIE: My Lord, you are right and listening to the argument, there is an element of two ships passing in the night because we both assert a constitutional assumption upon which Parliament has legislated. That is the reason for trying to trace through the steps of this first stage of the argument, because the punch line of it is going to be that the courts have specifically and expressly grappled with the principles that should apply when you are dealing with the abrogation of a pre-existing power of the Crown by way of prerogative and that the appropriate approach in principle is the one developed by the House of Lords in repeated cases in the Court of Appeal thereafter from Decasa, which it might be thought it is notable, Lord Pannick was quite keen not to base his case upon, no doubt because he wanted his ship to be passing to the right of the light or the flag, but my Lord is right.

LORD CHIEF JUSTICE: It is a good advocate’s point.

…

MR EADIE: The issue in this case is whether Parliament has continued to consent to the use of our prerogative, the well established prerogative of withdrawing from specific treaties, in the knowledge that the withdrawal will create various legal effects within the system, or may do, and I will come to precisely what legal effects are created in due course.

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But of course the basic position is that treaties are not self-executing, they exist on the international plane and require Parliamentary intervention before they interpose rights into a domestic legal system. But as all that line of case law before the ECHR became part of domestic law through the interposition of the 1998 Act, there were a whole series of potential impacts, and subsequently recognised to be a whole series of impacts that an action on the international plane can have on domestic legal rights, even if they do not self-execute.

…

The question that we are here addressing is whether or

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not a specific prerogative such as withdrawing from a treaty has indeed been abrogated; as I have said repeatedly now, that is a question of ascertaining Parliamentary intention. How do you judge that? You go to De Keyser and the set of case laws that De Keyser sets out.

So our case involves no injury to the statement of common law of Lord Oliver. We simply submit that in our case, Parliament has advisedly decided not to abrogate the prerogative, and if and to the extent that the step that would be taken by notification would or might have an impact on to current legislative rights, Parliament will need, in the usual way, to deal with that by legislating.

Eadie argued that, while treaties are not “self-executing” ie they require parliamentary legislation to have domestic effect) they can nevertheless affect domestic law, not least because judges will take account of treaties in their judgments (as they did in the Assange Extradition Act case see Assange, UKIP and Baron Mance)

Eadie [I]nternational law in

the form of treaties entered into in the exercise of the prerogative can indeed have impact into domestic legal rights. That is a principle which accords consistently with the general point that treaties are not self-executing. That doesn’t mean they don’t have or can’t have some really quite significant impacts into rights that exist domestically.

…

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Lord JUSTICE SALES: I have slightly lost the thread of the argument. I understand the principles you are referring to, but how do they help us in this case?

MR EADIE: My Lord, they don’t touch the approach which respectfully recommend to the court, which is the De Keyser principle, but I will come in due course to try and analyse a little bit more closely the true nature and scale of the effect of actually starting the process by giving the Article 50 notification on domestic legal rights. It is quite important, we respectfully submit, to recognise that for that purpose, given one is trying to do that nuanced analysis, to see that the principle that English law is dualist does not mean, even at its height, that things done by the Crown in the exercise of the prerogative on the international plane cannot have really quite a significant impact on rights, even if treaties are not self-executing.

LORD JUSTICE SALES: Thank you.

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Eadie [T]here are numerous examples of situations in which people no doubt, as they are perfectly entitled to do, in which they organise their affairs, both natural and legal persons, by reference to unincorporated treaties which could then be renounced or withdrawn from by the Crown.

Eadie is talking about bilateral rights such as relaxation and reimposition of visa requirements, mutual taxation agreements between states

EADIE: [N]one of this is dispositive, but it does

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indicate that the prerogative, ie the exercise of the Crown’s power on the sphere of international relations, can have real practical and sometimes real legal impacts on to rights and obligations, and there isn’t anything terribly constitutionally surprising about that. The correct approach is to analyse whether Parliament has set its face against the exercise of the prerogative in any particular sphere or has imposed control. That is ultimately the question. But one cannot derive from the authorities, we submit, any sort of broad and absolute proposition of the kind on which my learned friend Lord Pannick sought to build his case.

… There isn’t any broad, general proposition that steps on the international plane and the exercise of the prerogative are unlawful, if and to the extent that they either do or they might have an impact on domestic legal rights.

Eadie and the Master of the Rolls discuss a theoretical double ta treaty between countries (ie harmonising people who work and are taxed in both) as an example of a treaty act that conferred rights directly on citizens.

22 THE MASTER OF THE ROLLS: Can you give me an example in practice of how a double taxation treaty negotiation, withdrawing a benefit under it without legislation, could be applied by analogy here? Can you give me,

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rather than taking the general principle, can you give me an exact example of such a situation.

MR EADIE: Of the situation of the double taxation treaty?

THE MASTER OF THE ROLLS: You are relying on the double taxation principle as somehow supporting the proposition. I am not baulking at that, I just want to a concrete example. Because for example in my own mind, if you have a double taxation agreement, it might be something along the lines, so far as British citizens are concerned, of saying that you can make a deduction for British taxes in relation to something that occurs elsewhere, your company or whatever, operating in some foreign country.

MR EADIE: Yes, in Malta. The examples I gave you, the documents I gave you are Maltese by way of illustration.

THE MASTER OF THE ROLLS: There, let’s assume that the Crown negotiates something which involves a curtailment of that right. It would still need Parliamentary intervention to remove the right, by way of some finance bill, from a person in this country to make the deduction. That would be necessary. And indeed Parliament might, one would have thought, Parliament might say: well, actually we don’t agree with the government that this deduction should be disallowed, we would like to continue it.

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MR EADIE: Yes.

THE MASTER OF THE ROLLS: I just want to understand you how say that a double taxation agreement would serve to support the general argument that you are advancing.

MR EADIE: My Lord, I think the answer to that is that the double taxation treaties do indeed involve — I think they involve a bespoke process by which you do have to go back to Parliament, but afterwards. Much of this — there is therefore a sequencing involved. What happens in terms of sequencing is that the double taxation treaty is renegotiated or different provisions are arrived at. Then, as my Lord says, there is interposition into domestic law and Parliament reacts. But the fact of the matter is and the point is that the royal prerogative has been exercised to create, as it were, the new agreement, which if Parliament then said: we don’t like that; which they would be constitutionally perfectly entitled to do because they are supreme, they do that afterwards.

THE MASTER OF THE ROLLS: Yes.

MR EADIE: So, as it were, it could just as much be said in that context as it could in ours, that there is preemption by the exercise of the prerogative right there, which is to renegotiate and enter into a new — double taxation or whatever it might be, agreement. It

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doesn’t preclude Parliament from then saying: well, actually, we don’t much like the look of it; nor does it necessarily preclude — maybe my Lord is right in terms of that specific context — Parliament having potentially necessarily to alter the domestic scheme to take account of that new arrangement —

THE MASTER OF THE ROLLS: All I am saying is that all that shows, that particular example, is that a Parliamentary intervention — in order to give effect to what has been negotiated by the Crown and its prerogative power, in order to give effect to it, Parliamentary intervention is necessary and it is substantive. It is not simply: well, there is nothing else we can do; it is actually a substantive exercise of Parliamentary supervision. That is the point I am making.

MR EADIE: My Lord, yes. I don’t mind that, if I can put it that way. For the purposes of my argument, I don’t mind that because in that context, whether it intervenes substantively or not to alter things, the fact of the matter is that the prerogative has been exercised in that way. Now, that isn’t an example of, as it were, having a direct and immediate impact on to domestic law; it is an example of the Crown exercising its power on the international plane to enter into an agreement which it then, as it were, presents to Parliament to say yes

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or no. If it says no, then the Crown has to go back and renegotiate, or put up with the fact that it would be in breach of its international obligations.

THE MASTER OF THE ROLLS: Yes.

So Eadie does not see this as undermining his argument. The treaty can be changed and then Parliament modifies the laws to fit in with it – or can reject the changes. (The problem for Eadie, though, is that if the Article 50 notification is final, there is no going back, how can Parliament insist on something different or staying in the EU? Pannick argued it had a gun to its head and the European Communities Act must fall. See above and Parliament holds the cards – for a slightly off-the-wall discussion of this point). Eadie says (p.149) the EU rights “might be replicated”: “That would depend on the outcome of the negotiations, whether an agreement is reached and so on.” But this doesn’t necessarily answer the Pannick point.

…

MR EADIE I don’t want to get too far ahead in the argument, but one has in our context, just as a basic taxonomy, a set of rights that would require legislative intervention directly, were they to be altered, because they currently sit on the domestic legal statute book, and they would have to be altered by primary legislation which Parliament intervenes to do. You have another set of rights that currently exist

under EU law which might or might not be replicated. That would depend on the outcome of the negotiations, whether an agreement is reached and so on. We know that if an agreement is reached, you have CRAG [Constitutional Reform and Governance Act 2010], the legislation that says you have to go back before you ratify; that legislation is in relation to agreements. Then you have a third lot of rights, which is why my learned friend Lord Pannick liked this lot more than the other lot, where in effect the right which is

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an incident of being and continuing to be a member of the club is hollowed out. I will come back to those, but there are a whole variety of different ways in which those rights would ultimately fall to be dealt with. My limited point in relation to double taxation treaties, accepting all of my Lords’ points, is that that is an example of the Crown exercising a prerogative to create at least a degree of — preemption is not the right word, but it enters into the agreement in a sequence. It then requires legislative intervention, substantive or otherwise. I say requires, but you will understand why I use that word deliberately loosely. Because Parliament is supreme, it can always say: you can enter into whatever agreement you want, I don’t like it; and you, the Crown will then have to go back and put up with being in breach of your international obligations or renegotiate the agreement.

As I say, the broader point that I make, and it is a limited point in relation to this aspect of it, is don’t be seduced, as it were, by the idea that says: if the Crown exercises its prerogative on the international plane, and that more or less has an impact on current domestic rights, that fact in itself renders the exercise of the prerogative unconstitutional and in some

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way unlawful.

Here Eadie has distinguished between A: rights directly in statutes passed by Parliament; B: those in statute pursuant to a treaty obligation (both sets needing parliamentary legislation to change); and a third set, relied on by Pannick to argue for a parliamentary vote on Brexit, C: rights of being a member of the EU (which, presumably are only some EU rights; the others are in category B).

Eadie: [W]hen that [prerogative] power is exercised on the international plane by the Crown, it is doing so on behalf of the UK as a whole, the country as a whole, including all of the relevant institutions and including Parliament. It is back to the same theme, that the prerogative in all of its forms, including specifically in this form, exists as a result of the permission,

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express or implicit, of Parliament.

…

To the extent that Parliament wishes to control that process, it has e post and e ante ability to do that. It has e ante ability to do that, pursuant to De

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Keyser, that is the De Keyser question; and it of course in constitutional terms has e post control over that, because it is open to Parliament because it is sovereign, simply to say: well, we may have entered into that agreement but we are not going to give effect to it. We are going to take a different decision.

…

But none of that expression of principle, or that basic proposition that treaties aren’t self-executing, means or implies that legislative permission is needed before, as a sequencing matter, before making or unmaking the treaty, or before taking any other step on the international plane. The fact that Parliament will need to legislate if it is to incorporate the matters covered by a treaty into domestic law doesn’t limit, therefore, implicitly or otherwise, the availability of that power in the first place, without legislative authority, for the reasons that I have given.

So Eadie says “sequencing” is not an issue ie the parliamentary process can come after the issuing of Article 50 notice. He gives examples of agreements made in Brussels by the Government under prerogative that then are put before Parliament. He notes: “[I]f that is what the Crown has agreed to on the international plane, there is then a obligation to implement that through domestic legislation, but afterwards it doesn’t bind the hands of the Crown, it doesn’t prevent them in constitutional terms, that is simply the sequence in which the usual practice sits.” Such a procedure is not “offensive to parliamentary sovereignty”

Eadie: [T]he Rees-Mogg case is authority in this particular context for the proposition that if you are going to abrogate, because of the scheme and depth and detail of the control that Parliament has chosen to impose, if you are going to abrogate in the EU law context, only express [abrogation] will do… necessary implication doesn’t work.

Cases referred toA-G v De Keyser’s Royal Hotel Ltd Wartime occupation of hotel for defence purposes under prerogative – claim for compensation under Defence Act. Parliament ousted prerogative power, so compensation payable ie prerogative couldn’t be used when a Statute existed for the same purpose. Official law report pdf.

]]>https://thinkinglegally.wordpress.com/2016/10/24/brexit-court-case-miller-santos-day-two-digested-2/feed/3alrichThe Brexit court case (Miller/Santos): Day one digestedhttps://thinkinglegally.wordpress.com/2016/10/21/the-brexit-court-case-millersantos-digested/
https://thinkinglegally.wordpress.com/2016/10/21/the-brexit-court-case-millersantos-digested/#commentsFri, 21 Oct 2016 19:45:26 +0000http://thinkinglegally.wordpress.com/?p=893Continue reading →]]>Here are some of what seem to this writer crucial exchanges during the Brexit High Court case R (Miller and Santos) v Secretary of State. mainly to do with Lord Pannick’s first day arguments for the claimants. The links to the transcripts appear at the bottom along with quoted cases and comment. A report/analysis of the Supreme Court case is here: What if Eadie was right?

SALES LJ: Am I right in thinking that you say that the effect of the argument for the government would be that there wouldn’t need to be a repeal of the 1972 Act or section 2 of it, it is just that the content of the obligation in section 2, EU rights, would fall away, because they would cease to be EU rights?
16 LORD PANNICK: Precisely. Your Lordship is very aware and I am not going to enter into any political debate, but your Lordship knows that the government have announced that there is going to be a great repeal bill which is to be produced some time in the next session. I say that the consequence of the defendant giving notification will be that at a point in the future, it is inevitably the case that the United Kingdom leaves the EU and the consequence of that, as a matter of law, is that all of the rights enjoyed under section 2(1) and

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section 3(1), which is the process rights relating to the Court of Justice, fall away. There is simply nothing left. And therefore a great repeal bill, politically or otherwise, may be desirable. I say nothing about that. It will not affect those questions. Those rights will fall away as a consequence of the United Kingdom leaving the EU. Because when we leave, there are no treaty obligations. That is the whole point of leaving. And indeed that is the government’s intention. This is not a happenstance, this is the whole point of notification. Notification is intended to remove the current substance of section 2(1) and 3(1).

Note: The European Community Act at 2(1) says:
“All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable EU right’ and similar expressions shall be read as referring to one to which this subsection applies.”

At 3(1) it says: “For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any EU instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court.”

So Pannick is arguing that when Britain withdraws from the Treaty, there will be no reference point for Ss.2(1) and 3(1) of the ECA – since the Article 50 notification will be notice that Britain will no longer (at some point in the future) be bound by the treaties mentioned in those sections. This suggests he holds to the “dead letter” view on these Sections – that they become (prospectively) nul and void on issuing Article 50 notice. If so, the Government via its Crown prerogative, has interfered with an Act of Parliament, contrary to constitutional norms.

For Deir dos Santos, Dominic Chambers QC said this (at page 167 in the transcript):

[U]nder this proposed bill, on the UK’s withdrawal from the EU, the 1972 Act will be repealed and the current EU law will be transposed wholesale into domestic law, to be chewed over at leisure by Parliament in the months and years ahead. That is the proposal. But in our submission, that is topsy turvy. What it amounts to is the executive setting itself up as a de facto legislature at the Article 50.2 notification stage. The executive will be saying to Parliament at the notification stage ‘We have, without consulting you, set in train an unstoppable process of withdrawal from the EU and it is up to you, Parliament, to sort out the consequences in two years’ time, when the withdrawal takes effect’. That, in our submission, is what in reality is happening here and we say that is not permitted under the doctrine of parliamentary sovereignty, because it presents Parliament with a faitaccompli. And it deprives Parliament of the choice of whether or not its enacted legislation should be repealed because in those circumstances, Parliament will have no choice either to repeal its enacted legislation or it will simply just fall by the wayside. Either way, the rights will have been lost. Now, we submit that Parliament cannot lawfully be

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forced into this position by the executive because it is directly contrary to the negative side of parliamentary sovereignty, as described by Dicey. By acting as it is proposing to do, the executive will be doing nothing less than suborning the will of Parliament, as manifested in the 1972 Act and other enactments which give effect in domestic law to EU law rights.

This is a more strongly argued version of the “repeal, amend, dead letter” argument – that Parliament will be forced to act ie amend or repeal the legislation by the fait accompli that Britain will be out of the EU and the ECA will become void anyway. But the “suborning” of Parliament would be just that ie inducing Parliament to repeal the Act and replace it with sovereign rights derived from a snapshot of the EU law landscape – but inducing it by political means. No one can say Governments have never suborned Parliament to get Statutes through – and courts will of course recognise those Statutes however much suborning goes on – see Edinburgh and Dalkeith Railway Company v John Wauchope. (Thanks to bailli.org for this ancient and important case.)

The first day of the case digested (Oct 13)

LORD PANNICK: Your Lordships know the case for Mrs Miller,

is that prerogative powers may not lawfully be exercised by the minister because their use in this context would remove rights established by Act of Parliament, and

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would preempt the decision of Parliament, whether or not to maintain those statutory rights. That is our submission, which I will seek to develop. All the more so, we say, when this question of the legal limits of

executive power arises in the context of one of the most important of our statutes, the European Communities Act, which is the source of so much of the law of the land.

…

we are not inviting the court to address, nor would, I respectfully submit, the court wish to address, the substance of what Parliament may say if, as we contend, the defendant has no legal power to notify using prerogative powers, and if Parliament were hereafter to be asked to give statutory authorisation. If we are correct in our legal submissions, and if the government were then to place a bill before Parliament, it would be entirely a matter for Parliament whether to enact legislation and in what terms. Parliament may decide to approve such a bill, authorising notification. Parliament may reject such a bill, or it may approve it, with amendments which may impose limits on the powers of the defendant.

[This is to challenge the suggestion that the use of the prerogative cannot be challenged in court because it would imply a court telling Parliament how to behave – contrary to UK constitutional norms including the Bill of Rights 1689. So at p.8 Pannick says: “Our case, of course, is that these proceedings raise an issue of law. An issue of law is for the court to decide, and the declaratory relief we are seeking would not trespass on the powers of Parliament. On the contrary, we say it would uphold the powers of Parliament.”

LORD CHIEF JUSTICE: The question really was directed that once notification is given, it can’t be given in terms that we give notice but it is conditional, in that it is — the terms again, are subject to parliamentary approval.

LORD PANNICK: No.

THE LORD CHIEF JUSTICE: Your answer is that the UK government cannot reserve parliamentary approval to anybody at the outset, it is an absolute notice. LORD PANNICK: Yes. The United Kingdom has to make up its mind. And the United Kingdom has to decide, are we going to give notification of withdrawal?

…

LORD CHIEF JUSTICE: What you are saying is that in paragraph 1 of Article 50, is where it says “any member state may decide to withdraw from the Union, in accordance with its own constitutional arrangements”, you can’t say; well, the executive can give notice, but Parliament has to approve the terms. It can’t give that sort of notice.

LORD PANNICK: That is my case … It is of vital importance to our case that the agreement or otherwise of Parliament is irrelevant … I say the whole point of this regime is to say to a member state, “If you decide to withdraw, there are consequences.” And the consequences are that the treatise will cease to apply to you, irrespective of what, domestically, may happen thereafter, once a notification is given. That is the whole point behind our submission.

…

My Lord, your Lordship’s other question was whether

or not it would be possible to withdraw a notification once it has been given. And our submission, again, is that it is not possible for the United Kingdom, once having given a notification, to withdraw that

notification. Article 50 is deliberately designed to avoid any such consequence. There is no mention of a power to withdraw. And the very possibility of

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a power to withdraw a notification would frustrate, again, Article 50(3), which sets out in the clearest possible terms, what the consequences are of giving the notification under Article 50(2).

…

And it is the action on the international plane of giving notification which leads to the removal of a whole series of rights, important rights, which are 2 conferred by Parliament in 1972, and thereafter, and

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if it can’t be given conditionally and it is irrevocable, then

we royal those rights are removed, whatever Parliament may think about it at a later stage.

…

[On the referendum]

LORD PANNICK: What is absent from the 2015 Act is any provision specifying what consequences, if any, should follow from the referendum result. The Act says nothing on that subject. And it is of interest that the Act says nothing on that subject, because when Parliament does 2 wish to specify the consequences that should follow from

2 a referendum, it says so [eg the AV referendum of 2011].

…

He [the author of the Government’s skeleton argument] does not say that he has a statutory power conferred by the 2015 Act. What his skeleton argument suggests is that the 2015 Act, and the referendum which it authorised, is not a source of legal power to give notification, it is a justification for the use of prerogative powers to give notification.

[Pannick is saying that the government view is not that the referendum result requires the Government to withdraw from the EU but gives the basis for a reasonable decision under the prerogative – which requires an assessment of the good of the country coupled with reasonableness, but does not require a vote in Parliament or parliamentary legislation. He adds that the government argument was also that it had always made clear it would abide by the referendum. Later he answers this by saying “Government policy is not law”– see below.]

…

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[T]he issue in these proceedings is not whether it is justifiable for the defendant to use prerogative powers [ie not the issue of rationality]. The question for the court, in my submission, is whether the defendant has lawful power to use the prerogative. And therefore the defendant’s arguments as to whether he is justified in using such a power are wide of the mark. Our challenge is to whether he has legal powers in the first place, not whether he is justified in using them, if he does possess them … there is nothing in the 2015 Act to suggest that they are altered in any way by the 2015 Act. The common law limits on the use of prerogative powers cannot, in my submission, be altered by an Act of Parliament which says absolutely nothing on the subject … I say

the only real issue in this case, is whether the defendant can use prerogative powers in a context where their use will defeat rights which have been conferred by Parliament itself.

…

Government policy is not law . The assertion of government policy takes the defendant, with respect, nowhere, and in any event, none of the policy announcements which are referred to, and the understanding on which the referendum took place, addressed the issue in this case … whether the government may act unilaterally to notify or whether it needs parliamentary approval to do so.

LORD JUSTICE SALES: When you say parliamentary approval to do so, do you mean primary legislation?

LORD PANNICK: Yes.

LORD JUSTICE SALES: Not votes in either house?

LORD PANNICK: No, a mere motion would not suffice. And the, again, the reason for that, consistent with what I am submitting, is that a mere motion cannot abrogate rights

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that have been conferred by Parliament, only –

LORD JUSTICE SALES: It is not primary legislation.

LORD PANNICK: No, you need primary legislation.

…

LORD PANNICK: [T]he logic of my friend’s [ie the lawyers for the Government] arguments for the defendant is that the defendant has to say that despite the existence of the 1972 Act and other legislation conferring statutory rights, it would be open to the defendant, as a matter of law it would be open to the defendant, to use prerogative powers to withdraw from the EU under Article 50, even if there had been no referendum. And that would, I say, be a quite remarkable state of affairs that under prerogative

powers, that could be achieved. That has to be my friend’s case.

[Pannick suggests here (and later) that the logic of the Government’s argument is that Theresa May could just wake up and decide to leave the EU. But he fails to acknowledge that the prerogative is subject to judicial review on the basis of rationality as well as vires (whether she has the power to utilise it in a particular case). That there has been a referendum might allow an argument that its use is rational– which is presumably why Pannick is not running a rationality case.]

…

[W]hat the 1972 Act recognises and implements is the fact that EU law confers rights and imposes duties, but let’s focus on rights, it confers rights at international level which take effect in national law. And more than that, those rights are not defined as at the date of any domestic implementation. They are rights which are altered from time to time by institutions not answerable to the Westminster Parliament. And that is not all. The rights take priority over inconsistent national law. And the rights are interpreted as to their scope, as to their meaning, at international level. They are determined by a court of justice in Luxembourg, whose rulings take priority over those of domestic courts, however senior. And my

Lords,

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it is the irony of these proceedings that precisely these characteristics of EU law, which are not in dispute, I apprehend, but it is precisely these characteristics of EU law which are both the reason why the defendant wishes to notify the UK’s intention to withdraw from the EU, in order to restore, as the defendant would put it, national sovereignty.

…

Of course there is no question but that a treaty — under our constitutional law, a treaty is not self executing. There is no

dispute about that. Treaty obligations alter domestic law, only if and to the extent that an Act of Parliament so states. What Parliament has done in the 1972 Act is to make EU law a part of United Kingdom law.

[Rights under EU law include free movement, vote in state of residence, non-discrimination on grounds of nationality. The Lord Chief Justice asked for a list of rights that could not simply be re-enacted by Parliament (and hence presumably would be part of the “Great Repeal Act” ie, transposed into UK legislation).]

LORD PANNICK: [in reply]: It’s not possible for Parliament to re-enact a right to vote in the European Parliament. It is simply inconceivable. There is a statute which confers that right and Parliament simply cannot confer a right to vote for a member of the

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European Parliament. Inconceivable. That is one example. A second example is once we leave, assume, this is your Lordship’s question to me, assume that Working Time Directive, or other provisions are re-enacted, its quite impossible for Parliament to re-enact that my client or anybody else should have a process right, an absolutely crucial process right, to obtain a determination of the Court of Justice, in Luxembourg, as to the meaning, the scope and the meaning

of that right. That will go forever. That is not possible. And it is also quite impossible for Parliament, of its own volition, to confer on my client, or anybody else, a right to free movement and all of the other fundamental rights throughout the community, free movement of services, goods, a person’s right of establishment. Parliament cannot do that of itself … If you are going to take them away, then you need parliamentary authority. You can’t just do it as an act of the executive.

[Later he says “Parliament, of itself, simply cannot restore those rights once we leave the EU, as we will if notification is given. Not least because the agreement of other states will be required to restore any of those rights. The decision of Parliament is simply preempted” (p.65).]

…

MASTER OF THE ROLLS: [D]o you say that the executive act cannot remove, let’s say, a common law right?

LORD PANNICK: Certainly. There are many cases, for example, the courts have said in celebrated administrative law cases that where there are fundamental rights recognised at common law, such as access to the court, it is not open to the executive to take action which will deprive people of those rights. You need parliamentary authority. And if necessary, I can show your Lordship those cases. This is a stronger situation, in that the rights are recognised by Parliament itself.

[Pannick notes cases such as “Factortame, Thoburn in the Divisional Court, Buckinghamshire in the Supreme Court — where the courts have described the 1972 Act as a constitutional statute, a statute that has a particularly high status”.]

…

Great Repeal Bill

LORD PANNICK: the government have announced that there is going to be a great repeal bill which is to be produced some time in the next session. I say that the consequence of the defendant giving

notification will be that at a point in the future, it is inevitably the case that the United Kingdom leaves the EU and the consequence of that, as a matter of law, 2 is that all of the rights enjoyed under section 2(1) and

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section 3(1), which is the process rights relating to the Court of Justice, fall away. There is simply nothing left. And therefore a great repeal bill, politically or otherwise, may be desirable. I say nothing about that. It will not affect those questions. Those rights will fall away as a consequence of the United Kingdom leaving the EU. Because when we leave, there are no treaty obligations. That is the whole point of leaving. And indeed that is the government’s intention. This is not a happenstance, this is the whole point of notification.

[He notes later, page 70, that, for example that European Parliamentary Elections Act, the UK statute to enact EU law on elections, is frustrated – in other words a piece of parliamentary legislation, albeit passed as a requirement of EU membership, is rendered nul.]

Cases

[Pannick goes through the cases (see below) supporting the view (per Norton LJ in Laker Airways): “The Secretary of State cannot use the Crown’s powers in this sphere, in such a way as to take away the

rights of citizens.”

LORD JUSTICE SALES: Again, Lord Pannick, as I am reading at the moment, the speeches in this case, they all turn on implied abrogation of the prerogative power by the

Page 87

relevant statute … So unless you can assist us further, I don’t, at the moment, get from this case, support for what I understood to be your wider proposition.

LORD PANNICK: [On the Fire Brigades case]: the case also is authority for the proposition that the minister, by the use of prerogative powers, cannot take action which will frustrate the substance of that which Parliament has already enacted. And if your Lordship thinks that it is necessary to put that proposition in terms of what Parliament implies, then as I have indicated, I am quite happy to put my submission on the basis that the enactment of the 1972 Act, the enactment of the Parliamentary Elections Act, impliedly is a statement by Parliament itself, that the rights which those statutes create, cannot be set aside or frustrated by the executive. I am very happy to put the case that way. But I say that that is, with respect, artificial, because the more general principle on which I rely is a principle that where Parliament has established statutory rights, and it has, they cannot be set at nought. They cannot be taken away by executive action on the international plane. And this case is a most unusual case, because of the context that the international plane is inextricably linked to domestic rights, and obligations. This is not a normal case where action can be taken on the international level, which does not have a consequence on the domestic level … There is nothing surprising about a constitutional principle that if Parliament has conferred statutory rights, a minister can’t take them away.

[He set out the case he was answering: the referendum; that restrictions on the prerogative should be expressed explicity in parliamentary legislation to work – not so in the European Communities Act 1972 etc; He points to the European Union Act 2011 which says: “Parliament enacted that a treaty which amends or replaces the TEU or the TFEU is not to be ratified unless a statement relating to the treaty was laid before Parliament, in accordance with section 5, the treaty is approved by an Act of Parliament and the referendum condition or the exemption condition is met.” (As is later pointed out by James Eadie for the Government, this Act was to avoid a “democratic deficit” of important treaty changes with little or no parliamentary say.)

Pannick notes: “your Lordships see a number of specific statutory restrictions on the power to enter into a treaty, which amends or replaces the TEU or the TFEU” (so his implication is such provisions apply equally to issuing an Article 50 notification of withdrawal or else show Parliament has balked at giving powers to remove/change rights to the Government under prerogative). He points to part 2 of the Constitutional Reform and Governance Act 2010 section 20: “a treaty is not to be ratified unless a Minister of the Crown has laid before Parliament a copy of the treaty, (b)the treaty has been published in a way that a Minister of the Crown thinks appropriate, and c) period A has expired without either House having resolved, within period A, [21 sitting days] that the treaty should not be ratified”.

PANNICK: The common law authorities recognise that prerogative powers may not lawfully be used, where their exercise deprives individuals of statutory rights or where the exercise preempts parliamentary consideration. That is my common law submission. It is either good or it is bad. But that is the submission. And the second answer that I give is that if I am right
13 in the submission that those are the common law limits on the lawful use of the prerogative, then it is nothing to the point that Parliament has imposed other restrictions on the use of prerogative powers. Parliament has not touched the common law restrictions on the use, the lawful use, of prerogative powers. A common law restriction on the use of prerogative powers can only be removed or altered by an express statutory provision. Especially, we say, in the context of an interference with the rights conferred by the 1972 Act, given its constitutional status. The fact that Parliament has not addressed the common law use on the limits of prerogative powers simply means in my

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submission, and elementarily means, that Parliament is content for the common law limits to continue to be applied by the courts.

LORD JUSTICE SALES: And if this court doesn’t accept your wider submission about common law limits, what do you say about —

LORD PANNICK: Well then I lose the case. I lose the case.

LORD JUSTICE SALES: — the legislation? [Sales asks if there is an alternative submission, that there is implied abrogation of the prerogative power. Pannick agrees, viz “once Parliament has created statutory rights it is implicit in that creation that Parliament must have intended that the executive cannot remove them or frustrate them.” But ultimately accepts if he loses his main contention, then he loses his “implication” point: “Because the only basis upon which I am putting forward an implication is that Parliament has created statutory rights. And the argument, I accept, doesn’t add a great deal of substance. The only reason I put it forward is because my Lord, Lord Justice Sales [proposed it, presumably].]

…

The third argument [of the Government], I just want to touch upon is that the defendant then says, it is paragraph 30 of his skeleton argument, and elsewhere, he says well, there is

page 98

nothing in the 1972 Act or indeed any other statute which requires the United Kingdom to remain a member of the EU. And that, of course, is correct. But it doesn’t address the legal complaint, which I have identified on too many occasions now; that notification will take away statutory rights and preempt Parliament’s decision on the matter. The fourth argument, the more substantial argument, paragraph 31 of the defendant’s skeleton argument, is that section 2(1) of the 1972 Act … “What section 2(1) of the 1972 Act does is give effect to the UK’s obligations under EU law whatever they may happen to be at any particular point in time.” [ie has no effect on Britain being in or out of the EU – only on the legal set-up if it’s in ie “liabilities obligations and restrictions from time to time created or arising by or under the treaties”.]

99
Our submission is that those words do not assist the defendant. [S.2(1) recognises new and evolving EU rights via EU laws and Court of Justice decisions.] … But what section 2(1) does not contemplate is a situation in which there are no rights and duties under the treaties for the purposes of that provision. And even less so because a minister has, by the use of prerogative powers, caused that to be so. Our submission is that section 2(1) and the language which it contains is intended to give effect to the rights and duties arising from time to time by reason of membership of the EU. Section 2(1) is not intended to give effect to rights and duties arising from membership of the EU existing from time to time.

…

[W]hatever the position is in international law as at 1 January 1973, the clear meaning of section 2(1) is that Parliament was concerned with the rights and duties which arise from time to time

101
under the treaties. Parliament recognised, it had to recognise, that the rights and duties that arise on the 1 January 1973 would not necessarily be the same rights and duties the following year, or ten years later. And Parliament very wisely was emphasising that what it was committing itself to was the incorporation into United Kingdom law of all of the rights and duties, whatever they may be under EU law from time to time… Section 2(1) is not a provision which addresses or contemplates the possibility of the United Kingdom ceasing to be a member of the EU. And indeed, it is striking that it is no part, rightly, no part of the case for the defendant that he enjoyed any statutory power to give notification under Article 50 by reference

102
to section 2(1). He doesn’t suggest it is implicit in section 2(1) that he has a statutory power. He relies, and relies only, only on prerogative powers.

[The Lord Chief Justice asks whether, prior to the passing of the 1972 Act, the Government could have, by agreement with other member states, “whittled away” rights without reference to Parliament. Pannick notes that Treaty amendments in fact are always followed by a statute to enact them in UK law eg Maastricht, Lisbon. The LCJ notes Section 3 of the 2011 Act fetters the executive (and hence the prerogative presumably)in that changes to the TFEU must be ratified by Parliament.]

LORD CHIEF JUSTICE: I will take you back to what I see as the most important practical point, the right of establishment, the right of freedom of movement. To take those away would require, under an amendment to the TEU or the TFEU, the treaty would have to be approved by Act of Parliament.

LORD PANNICK: Yes.
THE LORD CHIEF JUSTICE: And therefore the broader powers under section 2(1), are those restricted by section 2 of
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the Act, so that whereas, when this was originally enacted, there was a power that the executive could, as a matter of law, you know, agree with the other member states “Well, we are getting rid of this right and that right”, but it can’t do that now because of section 2 of the European Union Act [Treaties amending or replacing TEU or TFEU – laid before Parliament plus possible referendum].

…

PANNICK: [E]ach time there has been a fundamental change prior to 2011, there has been an international treaty which has been agreed but not ratified, and which states that it does not come into effect until domestic constitutional arrangements are secured.

THE LORD CHIEF JUSTICE: But does it therefore follow that on the alternative express or implicit argument, what you are really saying is that the power under section 2 cannot, as a matter of convention, or more recently as a matter of section 2 of the 2011 Act, be operated without the consent of Parliament, and therefore the prerogative power to amend the treaties has been restricted?

LORD PANNICK: Well, I am saying that. I am saying that

106
that is a consequence of common law. I say this is a much starker case, for the reasons I have given. That what the minister is doing is stripping away the entirety of section 2 and section 3 [of the ECA 1972]. He is removing any content. That is why I say this is such a stark case …

LORD CHIEF JUSTICE: … But … the operation of the power under Article 50 is, in fact, the operation of a power that can be
16 exercised by the prerogative, which doesn’t require, doesn’t need, an amendment of the treaty.

LORD PANNICK: Well, yes, the case for the defendant certainly is that section 2 has nothing to do with this case. Neither side is contending that section 2 is applicable —
THE LORD CHIEF JUSTICE: No.
LORD PANNICK: — to this case. It is not our argument.
THE LORD CHIEF JUSTICE: And it is not their argument.

[The Lord Chief Justice notes that S. 2(1) of the ECA 1972 (new treaty rights and EU law rights “without further enactment to be given legal effect” in the UK). Pannick says the use of Article 50 removes the “whole substance” of the ECA Ss. 2 and 3. So “It is a case of starting the international notification and committing the state of English law to the removal of various rights, a whole panoply of various rights, which are currently enjoyed”. In the past treaty changes have been ratified and the 2011 Act requires it. The Master of the Rolls wonders if “the effect of the European Union Act is to create a convention?” Pannick agrees but says it is a convention “with a very solid foundation” – in part because of the constitutional importance of the 1972 Act. Sales LJ suggests it is more than convention “because section 2(1) of the 1972 Act refers
to rights arising under the treaties”. Pannick agrees. He says if a treaty removes a right, such as the right to establishment – setting up a business in another EU country without unfair restrictions – then Parliament would have to ratify the change.]

(It should be noted that Jason Coppel QC, for the Government, in day three, points out that such rights of free movement are actually, in effect, bilateral; if a UK citizen was barred from setting up in France, s/he would go through French courts to get the EU right; so arguably Pannick and the judges are wrong – such rights would not require parliamentary changes because Parliament would be purporting to change the law of, eg, France or being asked to deny a right to eg French people rather than British people).]

LORD PANNICK: Addresses this in the Government’s skeleton argument: “Equally, the giving of notification under Article
4 50(2) to withdraw from the EU, is an act within the treaty prerogative of the Crown which takes place and has effect only on the international law plane.”

And that is the point; no, it doesn’t. If it did, then of course, one would understand the point that is being made by the defendant. But for all of the reasons I have sought to identify, that is simply not the case. The defendant then lists what he says are other examples of the Crown withdrawing from international treaties, but none of the examples raise the question in the present case. Because of the unique or at least exceptional characteristics of EU law [ie withdrawal removes rights enjoyed under domestic law].

Materials

Quotes used from cases

Bingham on prerogative in Chagos case:

“”The royal prerogative, according to Dicey’s famous is ‘the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown’. “It is for the courts to inquire into whether a particular prerogative power exists or not and if it does exist, into its extent. Over the centuries, the scope of the royal prerogative has been steadily eroded. It cannot today be enlarged.”

Tin Council case: JH Rayner v Department of Trade:
Lord Oliver: “The second [this is the second of the underlying principles] is that as a matter of the constitutional law of the United Kingdom, the royal prerogative, whilst it embraces the making of treatise, does not extend to

altering the law or conferring rights upon individuals, or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament.”

Case of Proclamations 1610; “”The King, by his proclamations or other ways, cannot change any part of the common law or statute law or the customs of the realm.”

Laker Airways v Department of Trade

Lord Justice Roskill: “Where a right to fly is granted by the authority under the statute by the grant of an air transport licence, which has not been lawfully revoked and cannot be lawfully revoked in the manner thus far contemplated by the Secretary of State, I do not see why we should hold that Parliament, in 1971, must be taken to have intended that a prerogative power to achieve what is, in effect, the same result as lawful revocation would achieve, should have survived the passing of the statute unfettered, so as to enable the Crown to achieve, by what I have called the back door, that which cannot lawfully be achieved by entry through the front”.

R (Fire brigades Union) v Secretary of State

Prerogative power used to establish a criminal injuries compensation scheme less beneficial than one on the statute books but not brought into force by the Government. Lord Browne-Wilkinson: “My Lords, it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive, so as to frustrate the will of Parliament expressed in a statute and to an extent, to preempt the decision of Parliament whether or not to continue with the statutory scheme, even though the old scheme has been abandoned.”

Cases referred toA-G v De Keyser’s Royal Hotel Ltd Wartime occupation of hotel for defence purposes under prerogative – claim for compensation under Defence Act. Parliament ousted prerogative power, so compensation payable ie prerogative couldn’t be used when a Statute existed for the same purpose. Official law report pdf.

]]>https://thinkinglegally.wordpress.com/2016/10/21/the-brexit-court-case-millersantos-digested/feed/2alrichThe celebrity threesome and a judicial foursomehttps://thinkinglegally.wordpress.com/2016/05/24/the-celebrity-threesome-and-a-judicial-foursome/
https://thinkinglegally.wordpress.com/2016/05/24/the-celebrity-threesome-and-a-judicial-foursome/#commentsTue, 24 May 2016 16:42:41 +0000http://thinkinglegally.wordpress.com/?p=905Continue reading →]]>Has the UK Supreme Court attempted to put the frighteners on the British press in the “celebrity threesome” sex case of PJS v News Group? The matter has not yet come to full trial, yet Lord Mance, who gave the lead judgment from the interim injunction hearing, has already accepted there is no public interest in the issue of who is PJS, the celebrity in the threesome.

Does this mean the Sun on Sunday, seeking to overturn an injunction against naming the alleged adulterer and his spouse, known as YMA, has been declared the loser before the case is heard?

Lord Mance has also suggested the Supreme Court might be amenable to establishing that damages for publishing such stories could be exemplary (a notion rejected in Mosley v News Group at a lower court level); or perhaps there could be innovative use of an “account of profits” – in effect handing over profit gained from use of private material. In Douglas v Hello regarding Hello’s unauthorised coverage of the Douglas/Zeta-Jones wedding, Lord Phillips said: “Such an approach may also serve to discourage any wrongful publication, at least where it is motivated by money.”

Arguably the court has also favoured the extension of the right to privacy beyond the limits set in the Human Rights Act and (at least until recent years) by Common Law – to the way a story is told rather than the mere confidential facts – thus embedding the so-called judge-made privacy law.

Lord Mance, in introducing his judgment to the press, said this (according to the Guardian):

“There is no public interest, however much it may be of interest to some members of the public, in publishing kiss-and-tell stories or criticisms of private sexual conduct, simply because the persons involved are well-known; and so there is no right to invade privacy by publishing them. It is different if the story has some bearing on the performance of a public office or the correction of a misleading public impression cultivated by the person involved. But … that does not apply here.”

This is subtly different from the rather more circumspect phraseology of Mance’s actual judgment, on behalf of himself and three other justices:

“There is on present evidence no public interest in any legal sense in the story, however much the respondents may hope that one may emerge on further investigation and/or in evidence at trial, and it [lifting the injunction] would involve significant additional intrusion into the privacy of the appellant, his partner and their children.” (para 44; emphasis added)

The judgment is, quite correctly, hedged around with qualifications whereas the press statement is boldly assertive – and arguably misleading, suggesting that the highest court in the land has established a legal principle and found the Sun on Sunday outside it in seeking to run the PJS story. Why the difference?

Background
First we must be clear about what judgments the courts were being asked to make in this case so far. They were considering an interlocutory injunction, that is interim injunction pending a full trial of the issues. They were not hearing a case for a permanent ban on publication nor for damages as a result of publication – the two remedies victims can claim in such cases.

The judges in the Supreme Court and the lower courts that have considered the case so far have therefore had to do two balancing exercises:

a) look at the newspaper’s right to freedom of expression (Article 10 European Convention on Human Rights) versus the right to privacy (Article 8);

b) look at the likelihood of PJS ultimately winning his substantive case (for permanent injunction and/or damages) and, if so, whether publication now would mean he could not be adequately compensated in money terms for his unlawful loss of privacy (under Article 10) and English Common Law breach of confidence.

Since a permanent injunction is one of the options available to judges in the ultimate trial, this second balancing exercise would normally come to the obvious conclusion: if the courts allowed publication now, it would be denying PJS one of his potential long-run remedies. Everyone would know his name so it would be too late to protect it. Damages might still be available, but how could they compensate loss of privacy?

So in the normal run of such cases judges look at the American Cyanamid principles on whether an applicant has an adequate case for the granting of an interlocutory injunction. Judges consider:

• whether the applicant had a strong or merely an arguable case;
• the likelihood of a permanent injunction at trial;• the adequacy of damages as a remedy if he wins the substantive trial;
• the balance of convenience;
• whether the status quo should be maintained.

“No such relief [ie interim banning injunction] is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed [ie at the full trial].”

So a judge considering an interim injunction must, to an extent, try to prejudge the ultimate outcome of the privacy/confidentiality case when it eventually comes to court and answer the questions: will the applicant (PJS) win and if so will he:

a) be granted a permanent injunction halting the revelation of his name and his alleged extramarital activities, or

b) simply be awarded the opportunity to seek damages from all those who, in breach of his confidentiality or privacy rights, publish the material.

In this case, however, thanks to publication in America, Canada and Scotland, “the whole world” already knows who PJS is, except for those in England and Wales – and even there anyone interested in the matter (and many who aren’t) also know thanks to the Internet.

The Court of Appeal in April (after initially imposing an injunction in January) therefore came to the conclusion that PJS was most unlikely to get a permanent injunction at trial, since the cat was already out of the bag. Though it assessed his case as “strong rather than merely arguable”, damages would be his only recourse. It ruled the injunction should be lifted but held in place pending appeal to the Supreme Court.

Legal issues
In the Court of Appeal (April 2016) Lord Justice Jackson had said that Section 12 of the Human Rights Act “enhances the weight which [ECHR] article 10 rights carry in the balancing exercise. Secondly, it raises the hurdle which the claimant [PJS] must overcome in order to obtain an interim injunction” ([2016] EWCA Civ 393 para 40).

Jackson was clear that PJS was likely to win his damages case ultimately – yet considered News Group had an “enhanced” right to publish the material beforehand anyway once it had leaked out elsewhere – a sort of freestanding right to publish what others were already publishing – having considered the extent to which “the material has, or is about to, become available to the public” (HRA S.12(4)(i)).

News Group’s argument at this stage was that “the protected information” was now neither confidential nor private; it “had entered the public domain; therefore the injunction served no useful purpose and was an unjustified interference with NGN’s rights under ECHR article 10”. (Para 20)

It is well established that confidential information, once public, is no longer protected. Furthermore the argument is that, in effect, a “public interest” is enshrined in Article 10 (enhanced by the HRA S.12) because PJS’s behaviour and the litigation around it had prompted a “public debate” – about free speech if not specifically about PJS’s morals. Material that “contributes to a debate of general interest” is protected by Article 10 which should trump the merely private interest of PSJ now his name is known to anyone who wishes to find it.

It’s not a bad point. Such a debate might, of course, be better prosecuted in measured legal postings such as this one than in the screaming headlines of the Sun and the Daily Mail. But even this blog post is severely circumscribed regarding what it can say about the legal issues, particularly about the potential public interest in what Mance acknowledged as the “tawdry” story of PJS’s behaviour.

So Jackson ruled the injunction should be lifted a) because a permanent injunction was unlikely at full trial (though damages remained highly likely); and b) because of an enhanced right to freedom of expression thanks to HRA S.12. In effect, he was saying the court had no right to hold back publication of what was published elsewhere already.

The Supreme Court In contrast, the four Supreme Court justices argued, in effect, that it had no right to sanction publication of something that, on balance, was likely to be found unlawful in the long run.

Lord Neuberger at the Supreme Court insisted there was no such “enhanced” Article 10 freedom of speech right – Article 10 and Article 8 must be seen as equally important in the balancing exercise “and the question is which way the balance falls in the light of the specific facts and considerations in a particular case” – including the existence of the couple’s two children and the effect the revelation might have on them. ([2016] UKSC 26Para 51)

Furthermore the Court of Appeal had already declared (at the January hearing) that “‘kiss-and-tell’ stories about a public figure which do no more than satisfy readers’ curiosity concerning his private life do not serve the public interest” (following the European Court of Human Rights case Couderc pdf).

In April Jackson had said there was “limited” public interest in the story. That having been, apparently, established and not challenged by News Group, the Supreme Court felt able to reimpose the injunction.

The real issues
It might be wondered why News Group failed to run a public interest case for lifting the injunction (ie based on the nature of the material rather than a general “right to know”), one that, apparently might have held some sway with Neuberger. The technical legal reason is acknowledged by Neuberger:

“This is an application to discharge an interlocutory judgment before the trial of the action concerned. NGN [News Group]’s case must therefore be that the interlocutory injunction should be revoked because of ‘some significant change of circumstances’ since it was granted in January 2016.”

News Group had won in the High Court, lost in the first Court of Appeal case. So in the second case before the Court of Appeal only “change of circumstances” could be argued – and that change was that the threesome story by April was published in the US, Canada and Scotland and available on the Internet – and hence was part of “public debate”. That was the limit of the argument News Group could put to that particular hearing.

Fortuitiously, though, it was also in the interests of News Group, and the tabloid press generally, to argue for a clear right to publish material, whether in the public interest or not, if that material is already available on the Internet. It would be an abiding and useful get out of jail free card in cases like this.

If the second Court of Appeal judgment had been upheld by the Supreme Court newspapers would never again have to make a public interest defence against injunction in a confidentiality or privacy case – so long as the same material was out there on the Internet already. The proud British tradition of kiss-and-tell, which seemed moribund after Leveson, would be back in business. And business is what it’s all about, as the Supreme Court recognised. Even though the three-in-a-bed material has already been published, there is still money to be made out of picking over the bones of the story by the printed media in England and Wales.

So, rather than run a public interest case about the content of any story that might be published in the Sun on Sunday, (the name, the facts, some stentorian moralising material) News Group argued it was in the public interest simply to be able to run such a story, ie that “the public interest in freedom of expression and in the story being published outweighed any privacy rights enjoyed by PJS” (Neuberger para 48).

But the Supreme Court has reimposed the injunction saying that without a proven public interest in the content, there is no free-standing public interest in publication. The court can’t sanction for one media outlet what it believes, on balance, will be deemed unlawful at trial, even if others have published the material already. Thus Mance (para 24):

“For present purposes, any public interest in publishing such criticism [of PJS] must, in the absence of any other, legally recognised, public interest, be effectively disregarded in any balancing exercise and is incapable by itself of outweighing such article 8 privacy rights as the appellant [PJS] enjoys.”(Emphasis added)

Comment
It follows that the four Supreme Court justices who favoured reimposing the injunction must believe that there is a good chance that a court when the matter comes to trial (back at the High Court presumably since it must start from scratch) will grant a permanent injunction against publication even though the horse has bolted and is grazing happily in other parts of the virtual world.

But it has come to this view, not on the basis of hearing why the story of PJS might be in the public interest, but on the basis of a sort of phoney war in the world of interlocutory injunctions in which the full arguments could not be put and News Group had some incentive to play inferior cards to win a bigger game – a blanket right to publish what was already in the public domain.

So this explains Mance’s circumspect words in his judgment (but not to the press), that “on present evidence” there is no public interest “in any legal sense” in the story, even if “one may emerge” in evidence at trial.

To the press Mance added that “it is different if the story has some bearing on … the correction of a misleading public impression cultivated by the person involved. But … that does not apply here.” This may be a shot across the bows, designed to suggest that the UK Supreme Court sees no public interest in the story at all so no lower courts is likely to either. The implication is that News Group should think again about pursuing the matter.

The injunction makes it impossible to disagree in this post with his Lordship – but does not prevent News Group lawyers crawling all over the story of PJS and his threesome to extract a public interest claim out of this tawdry tale.

Legal note: Arguably the Supreme Court has – let us say – progressed the law in this judgment to embed a new free-standing right to privacy, based on the notion of “intrusion”, where privacy law used to be based in Common Law confidentiality married to observance of European Convention Article 10 rights.

The modern privacy law was originally founded in the Common Law of confidentiality as interpreted in the light of Article 10 as is require by the Human Rights Act, section 6(1): “It is unlawful for a public authority [including a court] to act in a way which is incompatible with a Convention right.”

As Lady Hale put it in Campbell v MGN (2004) “if there is a relevant cause of action applicable [Common Law breach of confidence], the court as a public authority must act compatibly with both parties’ Convention rights.” In the PJS injunction case, though, there is arguably no such cause of action given the material has been published (ie is no longer “confidential” and so it’s actually too late to injunct it).

The Supreme Court nevertheless now seems to have asserted a right to privacy quite separate from confidentiality and capable of being supported by injunction. Indeed Lord Neuberger said (at para 53) the Court of Appeal was wrong to conflate confidentiality with the “intrusive and distressing effect” of the story – implying privacy injunctions are available separately from confidentiality injunctions: they can be used to halt “distressing” coverage of material that is already well known – certainly in PJS’s circle of friends as well as to his business associates, to acquaintances and to much of the world at large.

This right apparently involves not mere revelation of facts (the who and the what of the threesome that anyone can find out) but also the nature of the coverage – the sensationalism but also, one must assume, the mordant moralism likely to accompany it. So Neuberger notes that:

“If PJS’s case was simply based on confidentiality (or secrecy), then, while I would not characterise his claim for a permanent injunction as hopeless, it would have substantial difficulties.” (para 57)

Neuberger goes on to quote with approval Mr Justice Eady, fingered by the tabloid press for his singe-minded (if not single-handed) creation of an English privacy law:

“It is fairly obvious that wall-to-wall excoriation in national newspapers … is likely to be significantly more intrusive and distressing for those concerned than the availability of information on the Internet or in foreign journals to those, however many, who take the trouble to look it up”. CTB [2011] EWHC 1326 (QB)

In other words, the gag stays in force because PJS has done something that he finds morally unproblematic (we’re told he has an “open marriage”) yet which he would be mortified to have commented on in the vigorous, no-holds-barred manner that is traditional in the British press.

On public interestSee Alkaya v Turkey 42811/06: “… articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a person’s private life, however well-known that person might be, cannot be deemed to contribute to any debate of general interest to society.”

]]>https://thinkinglegally.wordpress.com/2016/05/24/the-celebrity-threesome-and-a-judicial-foursome/feed/2alrichYoung boy’s ‘sexual experimentation’ that led to lifetime criminal recordhttps://thinkinglegally.wordpress.com/2016/02/28/young-boys-sexual-experimentation-that-led-to-lifetime-criminal-record/
https://thinkinglegally.wordpress.com/2016/02/28/young-boys-sexual-experimentation-that-led-to-lifetime-criminal-record/#commentsSun, 28 Feb 2016 18:05:21 +0000http://thinkinglegally.wordpress.com/?p=832Continue reading →]]>Note: The UK Supreme Court has ruled on this and similar cases. See Update below.

The case of a 12-year-old boy’s “sexual experimentation” with male friends in a garden shed more than 10 years ago has joined a series of legal challenges to UK policy on maintenance and disclosure of records of “spent” convictions and police cautions.

The boy, G, and his mother had been told in 2006 the record of his “reprimand” (a minor caution for juveniles; see S.65 Crime and Disorder Act 1998) for two counts of sexual assault would be wiped out when he was 18. But when in 2011 he applied for a job in an employment agency at the library of a local college he was shocked to find that the police reprimand appeared on records at the Criminal Records Bureau. He withdrew his application to avoid the reprimand being revealed.

In 2006 Association of Chief Police Officers (ACPO) policy on keeping records had changed from weeding them out after five years if there was no subsequent offending to retention for 10 years. After 2009 it became police policy to retain caution and conviction information until the subject reaches 100 years of age.

G and his mother had been misinformed about the five year period and now he had been caught by the “aged 100 rule”. An appeal by G to the Chief Constable of Surrey for the record to be expunged was rejected.

Legal background
Under the Rehabilitation of Offenders Act 1974 a person does not have to disclose his or her convictions and cautions in answer to questions, for example by employers or prospective employers, to the extent that they are “spent”. But there is a long list of exceptions for sensitive, often professional, jobs. Under the Police Act 1997 (amendments not included in this link) disclosure is required if an employer offering a job under the excepted list asked for “enhanced disclosure” i.e. allowing spent cautions and convictions to be revealed. So the employer would want to know about sexual offences when the job involves children or vulnerable people. But they might also want to hear about brawling, drunkenness or criminal damage. It is up to the police authorities to decide on the “relevance” of the offence to the job – but it is probably easier to just hand over everything. (Note: this regime is separate from the Violent and Sexual Offenders Register.)

The facts
The boy, G, had been reported to social services as a result of inappropriate sexual behaviour with two boys at school. It was found that, aged 11 to 12, he had been involved with three younger boys in consensual sexual acts “ranging from ‘hand jobs’ and extending to ‘bum sex’ with some degree of penile anal penetration”. G had instituted the activity in a game of dares in a garden shed. G was two to three years older than the other boys and the only one of criminal age of responsibility (ie above 10). He acknowledged doing wrong.

The matter was reported to the Crown Prosecution Service which assigned it a gravity factor score of 1 (ie very low) and said this:

“Sexual experimentation by a thirteen-year-old boy and other younger boys. The matter has been investigated by both police and social services who are satisfied that it is not something sinister and serious just misguided. I understand that none of the parents has been demanding tough action either. I can see no benefit in criminalising this behaviour unnecessarily and giving this young man a criminal record …There is a public interest in marking our concern about this behaviour due to its repetition. In view of his age a reprimand is appropriate.”

However, owing to a recent legislative change (Regulations 2000) reprimands were more than mere tellings off by the police; they were now recordable. G’s mother was given a leaflet suggesting a reprimand meant he would “have a record for five years or until … 18 years whichever is the longer”. This was out of date and inaccurate since at the time the 10-year period applied. The judge in the case, Mr Justice Blake accepted the leaflet could have led the mother and G to believe that by 2011 the information would no longer be retained.

The case
G’s lawyers argued that if the mother had known the reprimand would have been kept on file she might have sought legal advice to prevent its being given. Indeed, the police themselves, if properly informed, might have considered the reprimand excessive in the circumstances. It was argued that a reprimand should be deleted from central records (ie the police national computer – though it could be retained elsewhere locally as “intelligence”) if it had been inappropriately issued – the policy of at least one other police authority (North Yorkshire).

Mr Justice Blake rejected this case against the Chief Constable saying: “I am not satisfied that the prosecutor in 2006 failed to have regard to the guidance or that he otherwise reached a decision that was irrational or unlawful.” He said she (the Chief Constable) had a right to take note of the legal requirement to protect children and that G’s conduct occurred multiple times. The reprimand was not unreasonable in the circumstances.

However, against the Government, he found that the retention of the reprimand was contrary to human rights law as an interference with private life (article 8 ECHR) that was disproportionate. It fell within the 2013 ECHR judgment MM v UK (see also a resumé:MM vUnited Kingdom– 24029/07 pdf)which established “that the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought, might reasonably result in a decision by a public authority applying human rights principles that disclosure was not relevant or necessary”. G had a highly arguable case that “despite the statutory scheme as amended, disclosure of the data to a third party is not relevant and proportionate”.

Regarding the sexual activity he noted that Britain had one of the lowest ages of criminal responsibility and “it was arguably a borderline line case for a reprimand”.

Blake J concluded: “I am satisfied the absence of any procedure enabling these matters to be examined by the decision maker before the case proceeds to this court results in the statutory regime being incompatible with the claimant’s rights.” In other words the fact that there is no process to review the continued holding of the information on the basis of proportionality (including relevance of the offence and time passing) is a breach of human rights law. He granted declaratory relief on this basis – that the decision and legal regime under which it was made was incompatible with the ECHR.

Comment
Mr Justice Blake’s view of the regime regarding caution disclosures is simple enough: it is not “in accordance with law” as any breach of privacy by the state, as a starting point, should be. Only if it were in accordance with the law could the authorities then be allowed to go on to justify it on public policy grounds: that it is “necessary in a democratic society in the interests of national security, public safety … for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. It is not in accordance with the law because laws must have certain characteristics built in to them, in particular a lack of arbitrariness.

This case reveals the law on retention and disclosure in some state of chaos characterised by the apparent absurdity of the “retain until aged 100” rule. The law on retention – derived from Common Law powers for police to retain information to fight crime – is becoming more arbitrary, not less, without minimal provision for individuals to challenge practices of retention and disclosure in their own cases.

Particularly unjust is the changing policy on retention. Until March 2006, any reprimand given to a juvenile would have been weeded out within five years. The policy change meant that until October 2009 such material would have been “stepped down” after 10 years.

Then the policy changed again: it would no longer be “stepped down” since a court case had established retaining the information indefinitely was not in breach of data protection laws (Chief Constable of Humberside and others v Information Commissioner[2009] EWCA Civ 1079). Now the policy is that data be removed on the individual’s 100th birthday – more a system for decluttering the files on set dates than a protection for the individual.

So G and his mother made a decision based on the five-year rule that turned into a whole life in which a teenager’s indiscretion will remain on the file and available for view under the enhanced disclosure system. This system applies to a whole range of jobs – many of them professional and aspirational such as law, education, charity work and even football positions (see R(T), facts below and this full list of exempted jobs). Paradoxically the middle classes are likely to be penalised the most for their teenage follies.

People in police stations who were told, often without lawyers present, that their caution would be wiped off the records after five years will have made decisions about balancing the hassle and expense of challenging the case – at the risk of a court applying a substantive criminal penalty – with just going home and forgetting about it, happy to keep out of trouble for five years – or indeed for the rest of their lives. Many thousands will have been affected in the decade or so running up to the institution of the “aged 100” rule.

The European Court in MM v UK noted the “absence of a clear legislative framework for the collection and storage of data” and said there was a requirement for detailed statutory regulations clarifying the safeguards applicable and setting out the rules governing, inter alia, “the circumstances in which data can be collected, the duration of their storage, the use to which they can be put and the circumstances in which they may be destroyed”.

Such a regime certainly did not exist for those caught retrospectively by the “policy change”. Had they known the record would be kept for the rest of their lives, they could well have made different decisions. G’s case was, inter alia, that “if the mother had been aware of what the consequences really were, she would have sought legal advice to contend that no reprimand should be issued and might have sought judicial review if it had been”.

The case of R(G) v Surrey Police et al did not directly address this issue though it was in the background of the judge’s thinking, noting as he did that “by 2012 reprimands would remain on the Police National Computer (central records) indefinitely or until G was 100 years old”. He therefore did not order the deletion of the record, merely recorded that the regime under which it was held was “not in accordance with the law”.

Subject to appeals in other cases, (see below) the judgment does suggest people caught by the “aged 100” policy change would have strong cases to insist on deletions of their cautions where issues of privacy and proportionality arise and also on grounds of arbitrariness.

Note: Nothing in this blog post should be relied upon for accuracy as to the law nor regarded as if it were legal advice.

Update: The cases of Gallagher, P, G and W (see below Recent Cases for background on some of these) have come before the Supreme Court now (January 2019) and the Justices agreed in principle that minor convictions should not be registered with the Barring Service. The Guardian reports here. It says:

“Lord Sumption, delivering the judgment, said existing criminal records rules were disproportionate on two counts: the way in which they required disclosure for multiple convictions even if they were minor and the way they failed to distinguish between warnings and reprimands issued to juveniles, as opposed to convictions.”

The principle set out was: “an excessively broad discretion in the application of a measure infringing the right of privacy is likely to amount to an exercise of power unconstrained by law. It cannot therefore be in accordance with law unless there are sufficient safeguards, exercised on known legal principles, against the arbitrary exercise of that discretion, so as to make its application reasonably foreseeable.” Sumption went on to say:

“This decision [MM v UK, see above] is treated by the respondents [for G et al] as authority for the proposition that a measure may lack the quality of law [ie on the legality test] even where there is no relevant discretion and the relevant rules are precise and entirely clear, if the categories requiring to be disclosed are simply too broad or insufficiently filtered. I do not accept this submission.”

And further: “The principle of legality is concerned with the quality of the domestic measure whereas the proportionality test is usually concerned with its application in particular cases. Unless the domestic measure has sufficient clarity and precision for its effect to be foreseeable from its terms, it is impossible for the court to assess its proportionality as applied to particular cases. But if the effect of the measure in particular cases is clear from its terms, there is no problem in assessing its proportionality.”

The rules governing the Barring Service and AccessNI (the Northern Irish version) regarding categories of disclosable convictions and cautions were clear and entailed no discretion, so:

“There is no difficulty at all in assessing the proportionality of these measures because, subject to one reservation (see the following paragraph), their impact on those affected is wholly foreseeable.”

So the system was in accordance with the law. However, the disclosure system was found lacking in terms of proportionality in two areas: that all previous convictions have to be be disclosed, however minor, where the person has more than one conviction; and also in the case of warnings and reprimands issued to young offenders.

Of interest: The Standing Committee for Youth Justice has published this report saying that the effect of the criminal record system on children is punitive and holds them back from reaching their full potential in adulthood.

Note on Links: The Government does not speedily update its legislation on the internet. Links to such official sites therefore do not necessarily have the most up to date version of the legislation – even several years after amendment.

Legal background
Blake J provided much background material in case law and international agreements relevant to the case. He noted that the 1987 Council of Europe Committee of Ministers Recommendation No R (87) 15 regulating the use of personal data in the police sector, adopted by the UK, says:

“2.1 The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation.”

The document’s Principle 7.1 requires measures to delete personal data kept for police purposes if they are no longer necessary for the purposes for which they are stored, taking account of criteria including rehabilitation, spent convictions and the age of the individual involved.

Blake pointed to this quote in the line of case law: “As the conviction or caution itself recedes into the past, it becomes a part of the person’s private life which must be respected” (which draws on MM v UK and Lord Hope in R (L) v Commissioner of Police for the Metropolis[2009] UKSC 3 at para 27). This is particularly so given the reprimand was given in private. It was stated in MM v UK:

“the court highlights the absence of a clear legislative framework for the collection and storage of data, and the lack of clarity as to the scope, extent and restrictions of the common law powers of the police to retain and disclose caution data. It further refers to the absence of any mechanism for independent review of a decision to retain or disclose data”.

In other words there was no clear legal sanction and if such sanction were created it would have to give the individual rights to challenge the retention or release of the information based on privacy principles and proportionality. So, as established in Malone v United Kingdom (1985) 7 EHRR 14 the phrase “in accordance with the law” in Article 8(2) of the European Convention (“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society …”) implies that “the law must … give the individual adequate protection against arbitrary interference” (para 68).

The Council for Europe’s 1984 Recommendation No R 84 (10) says states should: “provide that the information mentioned on the criminal record will be communicated only in the form of extracts whose content will be strictly limited to the legitimate interest of the recipients”. Various international instruments sought to protect juvenile offenders from the unnecessary disclosure of their criminal records particularly in relation to their rehabilitation.

“That a person should in practice be required throughout his adult life to disclose the fact that he committed a minor offence as a juvenile, if he wishes to pursue a wide range of careers, is difficult to reconcile with these provisions, in the absence of what recommendation 10 of Recommendation R (87) 20 [on juvenile delinquency] describes as ‘compelling grounds’.”

The case that brought about legal amendment in 2013:Court of Appeal: R (T) v Chief Constable of Greater Manchester Police & ors. [2013] EWCA Civ 25Supreme Court: R (T) v Chief Constable of Greater Manchester Police & ors.[2014] UKSC 35
This was a case of a child of 11 receiving two police warnings for stealing bikes. They appeared on an enhanced search when he applied to work for a footbal club aged 17 and when he applied for a university sports studies course at 19. The courts found mandatory and blanket disclosure of convictions as part of a criminal records check was incompatible with Article 8 of the European Convention on Human Rights. The Supreme Court said: “In order for the interference [with privacy] to be ‘in accordance with the law’, there must be safeguards which have the effect of enabling the proportionality of the interference to be adequately examined”.

New rules: Legislation on filtering rules to restrict the disclosure of old and minor convictions came into force in May 2013: Notes here (pdf). It requires that information handed to employers “should be reasonably believed to be relevant for the prescribed purpose for which the certificate is being sought”. (Guidance 2015)

Recent cases subject to appeal:R (on the application of) W v Secretary of State for Justice[2015] EWHC Admin 1952
Applicant sought to be a teacher but had an assault conviction 31 years earlier, disclosable under the rules. Judge ruled actual bodily harm conviction could continue to be disclosed since it was a serious offence.

Gallagher’s Application[2015] NIQB 63 Job offer for care worker withdrawn after six car seatbelt convictions disclosed (including not strapping up children in the back seat) – which the applicant did not reveal on her job application. The employer deemed this “a serious breach of trust”. As care is an exempted job, even minor spent convictions should be revealed. The court found, however that “automatic disclosure of this Applicant’s convictions violates art 8 of the ECHR”.

R (on the application of P and A) v Secretary of State for Justice[2016] EWHC 89 (Admin) Judges allowed applicants’ case that the revised statutory scheme on disclosure failed the legality and necessity tests under Article 8(2) of the ECHR, Lord Justice McCombe saying: “the present rules can give rise to some very startling consequences. Such results are, in my judgment, properly to be described as ‘arbitrary’.”

The recording of crime
Under current law cautions in general (simple cautions) are “spent” immediately, meaning the individual cautioned does not have to reveal them when applying for jobs, other than excepted jobs (conditional cautions are spent after three months).

However, an individual who is convicted of any recordable offence or cautioned, reprimanded, warned or arrested for such offences will have a “nominal record” placed on the Police National Computer. An individual’s nominal (ie by name) record is retained until his/her 100th birthday. There are about 12 million nominal records on the system of which about 10 million are criminal records.

The Disclosure and Barring Service (in England and Wales – which replaced the Criminal Records Bureau) is available for checks in the excepted positions under the rehabilitation legislation, including those involving work with children or vulnerable adults (also lawyers, police, people putting in burglar alarms). The service uses the Police National Computer.

If a person applies for an “excepted position”, then the prospective employer is entitled to ask for details of both spent and unspent convictions, cautions, reprimands and warnings by way of a criminal records check conducted by the Disclosure and Barring Service. Non-conviction information can also be revealed (eg arrests that led to no action) if the chief officer “reasonably believes it to be relevant”.

Chief constables have discretion to delete cautioning information and other non-court disposals from the national records. There is guidance to ensure consistent practice which restricts deletions to situation where innocence is subsequently proved (an example given is if what looked like murder turns out to have been a natural death).

“If the sexual act or activity was in fact genuinely consensual and the youth and the child under 13 concerned are fairly close in age and development, a prosecution is unlikely to be appropriate. Action falling short of prosecution may be appropriate. In such cases, the parents and/or welfare agencies may be able to deal with the situation informally. There is a fine line between sexual experimentation and offending and in general, children under the age of 13 should not be criminalised for sexual behaviour in the absence of coercion, exploitation or abuse of trust.” (CPS Guidance on Rape and Sexual Offences Chapter 11)

Exceptions to “spent” convictions under the Rehabilitation for Offenders Act:
“There are certain exceptions, where you do have to disclose your caution or conviction (even if it is spent). These are listed on the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and subsequent amendments. The positions listed in the Exceptions Order primarily relate to particularly sensitive areas such as work with children and vulnerable adults, work in law enforcement and the legal system, and high level financial positions. Exceptions also apply to certain licences (such as a Security Industry Authority licence) and to certain legal proceedings. Where an exception to the Rehabilitation of Offenders Act exists then you must list all cautions and convictions, even if they are spent.” (MoJ: What is the ROA 1975? pdf)

New guidance on the Rehabilitation of Offenders Act that came into force in March 2014 is here (pdf). It follows changes made in the Legal Aid, Sentencing and Punishing of Offenders Act 2012. Under the question: Will my conviction be removed from my criminal record once it is spent? Will caution and conviction information be removed from my criminal record after a certain period of time? it says:

“Current police policy is to retain all caution and conviction information until the subject reaches 100 years of age, for police operational reasons and in the interest of the prevention and detection of crime. The disclosure of information about spent convictions and cautions on a standard or enhanced disclosure certificate is justified in order to mitigate risks in the workplace, which are present for particularly sensitive purposes and positions, and to inform criminal and other tribunal proceedings.
If the information is not relevant, it should not count against the individual concerned. The Disclosure and Barring Service Code of Practice requires registered bodies have a fair and clear policy towards ex-offenders and not to discriminate automatically on the basis of a conviction or caution.
Chief officers of police are responsible, as data controllers, for information stored on police systems by their force and, in exceptional circumstances, may agree to remove information from an individual’s record. However this is only where compelling reasons exist and it is a matter for the individual to raise directly with the chief officer of police concerned.”

Crown Prosecution Service advice notes:
“The 2003 [Sexual Offences] Act protects all children from engaging in sexual activity at an early age, irrespective of whether or not a person under 13 may have the necessary understanding of sexual matters to give ostensible consent … However; prosecutors may exercise more discretion where the defendant is a child … it is not in the public interest to prosecute children who are of the same or similar age and understanding that engage in sexual activity, where the activity is truly consensual for both parties and there are no aggravating features, such as coercion or corruption. In such cases, protection will normally be best achieved by providing education for the children and young people and providing them and their families with access to advisory and counselling services.”